California Law Review
Volume 56 | Issue 2
Article 2
April 1968
The Establishment Clause and Aid to Parochial
Schools
Jesse H. Choper
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Jesse H. Choper, The Establishment Clause and Aid to Parochial Schools, 56 Cal. L. Rev. 260 (1968).
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The Establishment Clause and
Aid to Parochial Schools
Jesse H. Choper*
I
INTRODUCTION
N
1947,
MR. JUSTicE RUTLEDGE
found "[t]wo great drives .. . con-
stantly in motion to abridge... the complete division of religion and
civil authority which our forefathers made. One is to introduce religious
education and observances into the public schools. The other, to obtain
public funds for the aid and support of various private religious schools." 1
Everson v. Board of Education, the occasion for his observation, was the
first significant decision of the Supreme Court in current history interpreting the establishment clause of the first amendment. Involving bussing
of children to parochial schools, it concerned the second of the Justice's
"two great drives."
Since 1947, the Court has addressed itself extensively to the first of the
two issues in controversy-the influence of religion in the public schools. 2
Although litigation on that question continues to arise,' the Court's pronouncements, despite some criticism,4 seem largely to have resolved the
*B.S., 1957, Wilkes College; LL.B., 1960, University of Pennsylvania; D.Hu.Litt., 1967,
Wilkes College; Professor of Law, University of California, Berkeley. The author wishes to
express his gratitude to his colleague, Frank I. Goodman, for his very helpful comments and
to Alan S. Koenig, of the third year class, for his excellent and exceptionally thorough research assistance.
'Everson v. Board of Educ., 330 U.S. 1, 63 (1947) (dissenting opinion). See also id.
at 14.
2
See McCollum v. Board of Educ., 333 U.S. 203 (1948) (on-premises released time);
Zorach v. Clauson, 343 U.S. 306 (1952) (off-premises released time); Engel v. Vitale, 370
U.S. 421 (1962) (Regents' prayer); School Dist. v. Schempp, 374 U.S. 203 (1963) (Bible
reading and Lord's Prayer).
3See Chamberlin v. Dade County Bd. of Pub. Instruction, 377 U.S. 402 (1964) (baccalaureate services); DeSpain v. DeKalb, 384 F.2d 837 (7th Cir. 1967) (compulsory recitation
of thankful-type verse) ; Stein v. Oshinsky, 348 F.2d 999 (2d Cir.), cert. denied, 382 U.S. 957
(1965); Reed v. Van Hoven, 237 F. Supp. 48 (W.D. Mich. 1965) (prayers before school
begins); Lewis v. Allen, 14 N.Y.2d 867, 200 N.E.2d 767, cert. denied, 379 U.S. 923 (1964)
("under God" in pledge of allegiance). See generally Ladd, Public Education and Religion,
13 J. PuB. L. 310 (1964); Note, 20 VAND. L. REV. 1078 (1967).
4 For various views, see Brown, Quis Custodiet Ipsos Custodes?-The School Prayer Case,
1963 Sue'. CT. R v. 1; Choper, Religion in the Public Schools: A Proposed Constitutional
Standard, 47 Mum. L. REv. 329 (1963); Fordham, The Implications of the Supreme Court
Decisions Dealing with Religious Practices in the Public Schools, 6 J. CmMc1 & ST. 44
(1964); Griswold, Absolute is in the Dark-A Discussion of the Approach of the Supreme
Court to Constitutional Questions, S UAH L. Rav. 167 (1963); Kauper, Prayer, Public
Schools and the Supreme Court, 61 Mica. L. Rav. 1031 (1963); Kurland, The Regents'
AID TO PAROCHIAL SCHOOLS
matter. Therefore, it is evident that the most sensitive issue involving
religion and government today is, as in Everson, that of public aid to
parochial schools. 5 Intense interest in the constitutional aspect of the topic
is reflected in a recent pamphlet reporting that as of December 1, 1967, at
least a score of cases involving the establishment clause question were
pending in state and lower federal courts.' And, on January 15, 1968, the
Supreme Court, for the first time in over twenty years, agreed to hear
argument on the subject.7
A. The Concept of Aid
Forcefully emphasized and oft-repeated language in Supreme Court
opinions, beginning with Everson, appears to permit little room for debate
about aid to religion:
The "establishment of religion" clause of the First Amendment means
at least this: Neither a state nor the Federal Government .
.
.. can
pass laws which aid one religion, aid all religions, or prefer one religion
over another ....
No tax in any amount, large or small, can be levied
to support any religious activities or institutions, whatever they may
be called, or whatever form they may adopt to teach or practice
religion.8
On this basis, President John F. Kennedy declared in 1961 that a "clear
prohibition of the Constitution"9 forbade the allocation of federal funds
for parochial schools.
What constitutes aid or support, however, is "obviously a sophisticated
and not a simple literal concept."' 1 In the Everson decision itself, for
Prayer Case: "Full of Sound and Fury, Signifying . .. ," 1962 Sup. CT. REv. 1; Pollak,
Foreword: Public Prayersin Public Schools, 77 HARV. L. REv. 62 (1963) ; Sutherland, Establishment According to Engel, 76 HA~v. L. REv. 25 (1962).
There has been virtually no disagreement with the Court's firm determination that the
ban of the establishment clause extends beyond the setting up of a state church. See McGowan
v. Maryland, 366 U.S. 420, 442 (1961).
GSee P. KAuIER, REIGIONxAD TBB CONSITUTON 109 (1964); Oaks, Introduction to
THE VALL BETWEEN CHURCH AND STATE 1, 5 (D. Oaks ed. 1963).
GAmerican Jewish Congress Commission on Law and Social Action, Litigation Docket
of Pending Cases Affecting Freedom of Religion and Separation of Church and State, Dec. 1,
1967, at i-ii.
7 Board of Educ. v. Allen, 20 N.Y.2d 109, 228 N.E.2d 791, 281 N.Y.S.2d 799 (1967),
prob. juris. noted, 36 U.S.L.W. 3278 (U.S. Jan. 15, 1968).
8 Everson v. Board of Educ., 330 U.S. 1, 15-16 (1947) ; accord, Torcaso v. Watkins, 367
U.S. 488, 492-93 (1961); McGowan v. Maryland, 366 U.S. 420, 443 (1961); McCollum v.
Board of Educ., 333 U.S. 203, 210 (1948). See also School Dist. v. Schempp, 374 U.S. 203,
216 (1963).
) 107 CONG. REc. 2430 (1961).
10 Hayes, The Constitutional Permissibility of the Participation of Church-Related
Schools in the Administration's Proposed Program of Massive Federal Aid to Education, 11
DE PAi. L. REv. 161, 168 (1962).
CALIFORNIA LAW REVIEW
[Vol. 66:260
example, the Court upheld public reimbursement to parents for the expense of bussing their children both to public schools and to Catholic
parochial schools; yet the Court acknowledged the "possibility that some
of the children might not be sent to the church schools if the parents were
compelled to pay their children's bus fares out of their own pockets when
transportation to a public school would have been paid for by the State."1 1
Even the Everson dissenters seemed to agree that the furnishing of police
and fire protection and of water and sewage services to churches and
church schools conformed with the establishment clause.12 Yet it may
plausibly be said that all of these "in fact give aid and encouragement to
religious instruction."'" Neither the fact of a "continuing and increasing
demand for the state to assume" their cost, 4 nor the fact that their provision by state funds affords the church "greater strength in our society
than it would have by relying on its members alone"'I5 demonstrates their
unconstitutionality. Some additional ingredient-some brighter line of
demarcation-is necessary for invalidation of the expenditure of tax
funds.'
Thus, despite the Court's rather insistent declarations, "[p]redictability is still elusive."' 7 It is not clear that "a non-preferential expenditure
of public moneys to religious institutions in furtherance of purposes in
which government and the churches have concurrent interests may... so
deeply involve government in religious matters as to violate what the
M8
Court conceives to be the basic values served by the First Amendment.
In sum, it does not appear that the Court has firmly foreclosed the issue
of the constitutionality of aid to parochial education.'"
B. The Relevance of "History" and "Experience"
Despite the fact that the Court has not absolutely precluded inquiry
into the constitutionality of aid to parochial schools, it could be argued
11330 U.S. at 17.
12SCe id. at 60-61 (dissenting opinion of Rutledge, J.).
13 Id. at 45.
'4 Id. at 46.
15 School Dist. v. Schempp, 374 U.S. 203, 229 (1963) (concurring opinion of Douglas, J.).
16 See Lardner, How FarDoes the ConstitutionSeparate Church and State?, 45 Am. Po.
Scl. REv. 110, 129 (1951).
t7 Kempner, The Supreme Court and the Establishment and Free Exercise of Religion,
in Religion and the Free Society, July 1958, at 65, 91 (pamphlet issued by The Fund for the
Republic, New York, N.Y.).
18 Kauper, Schempp and Sherbert: Studies in Neutrality and Accommodation, in 1963
RELGOON & PuB. ORDER 3, 28-29 (D. Giannella ed.).
19 For further discussion, see text accompanying notes 285-318 infra. Professor Kurland
has observed that "[alnyone suggesting that the answer [to whether government may con-
tribute financially to parochial education, directly or indirectly], as a matter of constitutional
law, is clear one way or the other is either deluding or deluded." Kurland, Of Church and
State and the Supreme Court, 29 U. Car. L. R
. 1, 96 (1961).
1968]
AID TO PAROCHIAL SCHOOLS
that the history of the religion clauses of the first amendment has already
determined the outcome. It has been contended that "history and experience may be sounder guides to locating Jefferson's 'wall of separation
between church and state' than abstract logic."2 But reliance on history
alone is futile. Perhaps it is true that "[n] o provision of the Constitution
is more closely tied to or given content by its generating history than the
religious clause of the First Amendment. It is at once the refined product
and the terse summation of that history."'" But a recent, detailed inquiry
into the practices, preferences, fears, and experiences of the entire generation that promulgated the religion clauses catalogues a wide assortment of
possible explanations for their phraseology and concludes that "it is impossible to give a dogmatic interpretation of the First Amendment, and to
state with any accuracy the intention of the men who framed it .... ,2
The historical facts are that free public education was virtually nonexistent during the early years of independence," and where it did occur
it had a distinctly religious orientation.24 The relevance of the latter fact
for the meaning of the establishment clause, however, is unconvincing in
light of the further fact that established religions and churches flourished
in the colonies,2" persisting at times into the nineteenth century.2 6 And, if
experience is to be our guide, it is perplexing to find that, despite provisions
in almost all state constitutions which arguably, and often explicitly, prohibit public aid to sectarian schools, 7 it was calculated twenty years
20 U.S. Dep't of Health, Education & Welfare, Memorandum on the Impact of the First
Amendment to the Constitutionupon FederalAid to Education, 50 GEo. L.J. 349, 357 (1961).
See also Herberg, Religion, Democracy, and Public Education, in RE=GIo, nr AmmcA 118,
142 (J. Cogley ed. 1958).
21
Everson v. Board of Educ., 330 U.S. 1, 33 (1947) (dissenting opinion of Rutledge, J.).
22 C. ANTIEAU, A. DowNEY & E. ROBERTS, FREnom FROM FEDnZAi ESTABLISMIENT 142
TmH WALL or SrxAATioN
(1964). See generally id. at 123-42. Also, compare C. M/o m.mu,
BETWEEN CuRCH AND STATE (1951), and Pfeffer, Church and State: Something Less than
Separation, 19 U. Ci. L. REv. 1 (1951), with J. O'N=, RELIioN Am EDUCATION uNDER
THE CoNsTIUToN (1949), and W. PARSONS, TrE FRST FREmou (1948).
23 See School Dist. v. Schempp, 374 U.S. 203, 238 & n.7 (1963) (concurring opinion of
Brennan, J.). See also Brown v. Board of Educ., 347 U.S. 483, 489-90 (1954).
24 C. ANTI U, A. Dow=nY & E. ROBERTS, supra note 22, at 71.
25
See Engel v. Vitale, 370 U.S. 421, 428 & n.10 (1962).
2
0 L. P E PER, C~a-Erc, STATE AN FREEDOM 141 (rev. ed. 1967).
27 A. STOES & L. PFEmTR, CaaUC Am STATE 3x THE UNIrED STATES 423-24 (rev. ed.
1964); F. BEAcH & R. WiLL, TuE STATE AND NoNPuBwC Sc ooLs 15-19 (HEW, Office of
Education Misc. No. 28, 1958). See also Note, Catholic Schools and Public Money, 50 YArn
L.J. 917 (1941).
It may be urged that the existence of explicit constitutional prohibitions against aid to
parochial schools in over 80% of the states, see A. STOIES & L. PrErR, supra, presents compelling evidence as to the construction, in view of widespread tradition, that should be given
to the establishment clause in respect to this issue. But there are several reasons why the point
is not persuasive. First, the language of the establishment clause is far from being as specifically opposed to such aid as are many of the state mandates. See, e.g., Mnrm. Co sT. art. 8,
CALIFORNIA LAW REVIEW
[Vol. 56:260
ago that both federal and state funds "are actually being allocated, in no
less than 350 instances, to American parochial schools today." 8 And it is
reasonable to assume that increased public concern with education has
caused that number to grow significantly.
Most assuredly, however, history occupies a prominent role in the
formulation of establishment clause principles. It has been properly
utilized by the Court, not to discover the precise intention of the framers
as to the controversial religious questions of today," but rather to "divulge
a broad philosophy of church-state relations.1 30 History should furnish
the informed perspective needed to fashion a rational constitutional standard that serves several purposes, including cognizance of the evil consequences feared by the framers," appreciation of values presently cherished, and capability of consistent application to the relevant problems.8
Too strong a reliance on history and experience, given their detailed inconsistencies which cannot be rationalized on principled grounds, will
result only in ad hoc, unreasoned rulings. Such rulings conceal value judgments that, although inevitable in constitutional decisionmaking, should
be laid bare by the articulation of general principles.
C. The Purpose of the Article
It has been seen, at the threshold, that both Supreme Court rulings
and first amendment history leave open the constitutional question of aid
§ 2: "But in no case shall ... any public moneys or property, be appropriated or used for the
support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught." This is evidenced by the fact that
despite the Court's interpretation of the establishment clause in 1947 in Everson v. Board of
Educ., 330 U.S. 1, permitting public payment of bus transportation of children to parochial
schools, a number of state courts have subsequently held the practice invalid under their state
constitutions. See, e.g., Matthews v. Quinton, 362 P.2d 932 (Alas. 1961), appeal dismissed and
cert. denied, 368 U.S. 517 (1962); State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 115
N.W.2d 761 (1962). Further, whereas the historical background of the establishment clause is
virtually devoid of problems of education, see text at notes 23-24 supra, many of the state
constitutional limitations were a direct response to Catholic efforts to obtain public funds for
parochial education. Note, Catholic Schools and Public Money, SO YALE L.J. 917, 919-20
(1941). Thus, both the wording and setting of many of the state prohibitions, in contrast to
the first amendment, clearly preclude any argument that certain aid to parochial schools is
valid because it is nonreligious and serves a public purpose. Reed, The "Permeation" Issue in
FederalAid to Education, 8 CATOLIC LAw. 197, 203-04 (1962). See also note 33 infra.
28
A. JonsoN & F. YOST, SEPARATION OF CEURCH AND STATE 1IN TIE UNITED STATES 112
(1948).
29
See School Dist. v. Schempp, 374 U.S. 203, 241 (1963) (concurring opinion of
Brennan, J.).
30 C. ANrmAu, A. DOwNEY & E. ROBERTS, supra note 22, at xi; see, e.g., Engel v. Vitale,
370 U.S. 421 (1962); McGowan v. Maryland, 366 U.S. 420 (1961); Everson v. Board of
Educ., 330 U.S. 1 (1947).
31 School Dist. v. Schempp, 374 U.S. 203, 236 (1963) (concurring opinion of Brennan, 3.).
32 The specific role which each of these sometimes conflicting elements should play in
constitutional adjudication is indeed a topic of substantial independent inquiry.
19681
AID TO PAROCHIAL SCHOOLS
to parochial schools. This article will propose a rule under the establishment clauses for testing the constitutionality of aid to those parochial
schools that provide at least some secular education. It is particularly
appropriate, in dealing with this topic of aid to parochial schools, to recall
Mr. Justice Frankfurter's warning that "preoccupation by our people with
the constitutionality, instead of with the wisdom, of legislation or executive
action is preoccupation with a false value."3 4 But it is constitutionality
alone that must concern us here, irrespective of any preference as to the
desirability of assisting nonpublic schools. 5 Perhaps in resolving this issue
"the members of the Court must have recourse to their own convictions
about the place of religion in education and public life," 6 but surely not
to the exclusion of other, more consequential determinants.
In brief, my proposal is that governmental financial aid may be extended directly or indirectly to support parochialschools without violation
33 As has already been observed, see note 27 supra, the question under the various state
constitutions may be wholly different. Because of the specificity of many of them, decisions
thereunder may require a drawing of lines that will not withstand the test of being capable
of "consistent application," see text accompanying note 32 supra, to a broad range of rationally
similar problems. See the comment of Professor Jaffe in Dorsen, The Arthur Garfield Hays
Civil Liberties Conference: Public Aid to ParochialSchools and Standing to Bring Suit, 12
BU'TALo L. R V. 35, 41 (1962).
The question under the establishment clause arises when a state aid program survives the
state constitutional test, see, e.g., Board of Educ. v. Allen, 20 N.Y.2d 109, 228 N.E.2d 791, 281
N.Y.S.2d 799 (1967), prob. juris, noted, 36 U.S.L.W. 3278 (U.S. Jan. 15, 1968), or in connection with the myriad of federal programs under which institutions with religious affiliation
receive federal funds through grants or loans. For a fairly complete listing of such programs,
see Hearings Before the Ad Hoc Subcomm. on Study of Shared-Time Education of the House
Comm. on Education and Labor, 88th Cong., 2d Sess. 32-48 (1964). See also text accompanying notes 559-69 infra. Especially important in this latter group is the Elementary and
Secondary Education Act of 1965, 20 U.S.C. §§ 236-44, 331-32b, 821-27, 841-48, 861-70,
881-85 (Supp. I, 1965), under challenge in six cases pending at the end of 1967. See American
Jewish Congress, supra note 6.
AwD STATE vii (J.Tussman ed. 1962).
84 Quoted in T~r Supnmr CoURT ow CRc
35
See Kauper, Church and State: Cooperative Separatism, 60 MIcH. L. Rlv. 1, 39-40
(1961). A mass of literature and debate exists on the question of wisdom and legislative
policy. An excellent brief summary may be found in L. PTEFTER, CirucRH, STATE, AxD FRzEDOM 521-29 (rev. ed. 1967). See generally, FEDERAL Am AN CATroLIc ScnooLs (D. Callahan
ed. 1964). Personally, I have no firm nor even well-informed judgment on the matter, although, as a believer in the virtues of a strong public educational system, I am troubled by
the argument that the distribution of tax funds to private and parochial schools would result
in their proliferation to the detriment of the public schools. See, e.g., Hearings on H.R. 2361
and H.R. 2362 Before the GeneralSubcomm. on Education of the House Comm. on Education
and Labor, 89th Cong., 1st Sess. 1533 (1965) (Statement on Behalf of the American
Jewish Congress).
36
Drinan, State and Federal Aid to Parochial Schools, 7 J. CHUmc & ST. 67, 71
(1965). Cf. Jones, The Constitutional Status of Public Funds for Church-Related Schools,
6 J. CH1URCH & ST. 61, 70 (1964): "In the interpretation of the 'no establishment' clause, as
in the interpretation of any other provision of the Constitution, it is impossible to achieve a
surgically pure separation of 'law' from 'policy."
CALIFORNIA LAW REVIEW
[Vol. 56:260
of the establishment clause so long as such aid does not exceed the value
of the secular educationalservice rendered by the school.
The general theorem is not advanced as being wholly novel. It has been
suggested by other commentators 7 and implicitly relied upon by state
courts facing the question under state constitutions.8" But a thorough
examination of its implications in light of history, precedent, principle,
and intricacies in application is called for."" No attempt will be made here
to predict the Court's future course of action. Rather, the proposed rule
seeks to take account of "past event and initial purpose ' 40 and, in this
light, to elaborate, as dispassionately as possible, a constitutional rationale "suitable for the government of the future."4
Part II of the article explores a general rationale for the broad scope of
the establishment clause, with particular emphasis on its historical and
contemporary goals, and with incidental reference to the fourteenth
amendment and to doctrines of standing. Part III describes the functioning
of this establishment clause rationale. Part IV discusses the specific
37 The dearest statements appear in Blum, Our Federal Constitution and Equal Justice
in Education, in EDUCATIONAL FREEDOM AND THE CASE roR GOVERNMENT Am TO STUDENTS IN
INDEPENDENT SCHOOLS 138-43 (D.McGarry & L. Ward eds. 1966); National Catholic Welfare
Conference, The Constitutionality of the Inclusion of Church-RelatedSchools in FederalAid
to Education, 50 GRo. L.J. 397, 411, 434-35 (1961); Note, 36 GEo. L.J. 631, 645-46 (1948).
See also Johnson, A Problem of Culture, in Religion and the Schools, April 1959, at 64, 70
(pamphlet issued by The Fund for the Republic, New York, N.Y.); Blum, Bus Rides for All
Children, SCHooL Acnvmas, Apr. 1967, at 6; Costanzo, Wholesome Neutrality: Law and
Education, 43 N.DJL. REv. 605, 620 (1967); Rafalko, The Federal Aid to Private Schools
Controversy: A Look, 3 DUQUESNE L. REv. 211, 222 (1965); Slough & McAnany, Government Aid to Church-Related Schools: An Analysis, 11 KAN. L. REv. 35, 69 (1962); NEW
REPUBLIC, Mar. 2, 1963, at 4-5.
38
See St. Hedwig's Indus. School v. Cook County, 289 Ill. 432, 124 N.E. 629 (1919);
Trost v. Ketteler Manual Training School, 282 Ill. 504, 118 N.E. 743 (1918) ; Dunn v. Addison
Manual Training School, 281 Ill. 352, 117 N.E. 993 (1917); Dunn v. Chicago Indus. School,
280 Ill.
613, 117 N.E. 735 (1917); Murrow Indian Orphans Home v. Childers, 197 Okla.
249, 171 F.2d 600 (1946). See also Community Council v. Jordan, 432 P.2d 460 (Ariz. 1967).
In several of these cases, the facts indicated that not only was public aid given to the religiously affiliated "schools" involved, but children of all religious faiths were committed to
them by the juvenile court. Thus, although the matter was not raised, first amendment issues
-free exercise and establishment-were there present that do not exist in the "ordinary" aid
to parochial school case. See text at note 551 infra.
For state cases refusing to accept the proposed rationale, see Bennett v. City of La
Grange, 153 Ga. 428, 112 S.E. 482 (1922) ; Synod v. State, 2 S.D. 366, 50 N.W. 632 (1891).
39 Without such an inquiry, one might agree with Mr. Justice Holmes that "no general
is worth a damn." 2 Horasx-PoLU.occ LETRas 59 (M. Howe 1st ed. 1961).
proposition
4
0
. HOWE, TRE GARDEN AND THm WinmENxss 3 (1965).
41 Id.I do not believe that the discussion that follows derives in any significant part from
my "own prepossessions about the wisdom of encouraging the maintenance of private schools
with public funds." Drinan, supra note 36, at 71. Nor do I believe that "the underlying
[constitutional] issue of the struggle is brutally simple: are parochial schools to be encouraged
or not?" Note, Public Funds for SectarianSchools, 60 HAav. L. REV. 793, 800 (1947). See also
note 35 supra.
19681
AID TO PAROCHIAL SCHOOLS
operation of the proposed rule for parochial schools. Part V places the rule
for aid to parochial schools in juxtaposition to competing theories, examining the efficacy of these other approaches and more fully illustrating the
workings of the thesis advocated. Finally, Part VI briefly summarizes
existing federal programs in aid of parochial education, measuring them
against the rule proposed herein.
II
AN ESTABLISHMZNT CLAUSE RATIONALE
A proposal permitting governmental financial assistance to parochial
schools not exceeding the value of secular services they render comports
with a general rationale for the establishment clause that reflects both
contemporary and historical aims.
A. Historical Support
Although the indistinctness of the precise historical designs of the
establishment clause has already been noted, several aims emerge quite
lucidly. Its paramount purpose then, like its major concern today, was to
safeguard freedom of worship and conscience-in a word, to protect religious liberty.42 And it is equally clear that this purpose comprehended the
intention that "the conscience of individuals should not be coerced by
forcing them to pay taxes in support of a religious establishment or religious activities. 43 In other words, as part of the general attempt to safeguard religious belief, the establishment clause sought to protect taxpayers
from being forced by the federal government to support religion. This is
cogently confirmed by Thomas Jefferson's "Virginia Bill for Religious
Liberty" which proclaimed "that to compel a man to furnish contributions
of money for the propagation of opinions which he disbelieves, is sinful and
tyrannical"; 4 4 by James Madison's "Memorial and Remonstrance Against
Religious Assessments" (whose title is itself revealing) which condemned
even forcing "a citizen to contribute three pence only of his property" to
support any religious establishment; 45 by Thomas Cooley's Constitutional
42
See P. KAUPER, supra note 5, at 77; RExGIoON
D AwnuCs N SocIsTi 41 (Center for
the Study of Democratic Institutions 1961); Dunsford, The Establishment Syndrome and
Religious Liberty, 2 DuQusuN L. REv. 139, 203-12 (1964); Sky, The Establishment Clause,
The Congress and the Schools: An Historical Perspective, 52 VA. L. REv. 1395, 1426-27
(1966). For further discussion and citation of authority, see Choper, supra note 4, at 333
nn.19-20.
43 Kauper, supra note 39, at 9. See also id. at 5-6. "The most serious infringement upon
religious liberty before our Bill of Rights was adopted was the use of tax-raised funds for
religious purposes." Pfeffer, Some Current Issues in Church and State, 13 W. REs. L. Rav. 9,
18 (1961).
44 12 HEENVo, STATUTES or VmimlA 84 (1823). But cf. M. HowE, supra note 40, at 26.
45 ff 3, set forth in Everson v. Board of Educ., 330 US. 1, 65-66 (1947) (app.). See also
CALIFORNIA LAW REVIEW
[Vol. 56:260
Limitations which found clearly unlawful "under any of the American
constitutions . . . [c]ompulsory support, by taxation or otherwise, of
religious instruction"; 4 6 and by many important Supreme Court opinions
in the church-state field-majority, concurring, and dissenting.4" Whatever
other historical bases for the establishment ban, 48 it is beyond reasonable
dispute that it purported to secure religious liberty, in particular by prohibiting taxation for religious purposes.4" That historical intent conforms
with the contemporary American view that "it is a violation of religious
liberty to compel people to pay taxes to support religious activties or
institutions.""0
B. The Scope of the Establishment Clause
Given this background, the broad philosophy of church-state relations
reflected in the nonestablishment precept becomes manifest: Governmental action for religious purposes is highly suspect; 5'it is constitutionally objectionable when it impinges on religious liberty either, as I have
Pfeffer, FederalFunds for ParochialSchools? No, 37 Norm DA= LAW. 309, 310-11 (1962);
Flast v. Gardner, 271 F. Supp. 1, 6-7 (S.D.N.Y. 1967) (dissenting opinion of Frankel, J.):
"It is now familiar to all who have touched this subject that a central concern-perhaps the
most central concern-of the Establishment Clause is to ban utterly the use of public moneys
to support any religion or all religions....
"'Support' by use of taxpayers' money lay at the heart of Jefferson's and Madison'
concern."
46
T. COOLEY, A TpmETIsE ON THE CoNsTrTUTIoAL LIMITATIoNS 663-64 (7th ed. 1903).
47
See, e.g., Engel v. Vitale, 370 U.S. 421, 442 n.7 (1962) (concurring opinion of Douglas,
J.); McGowan v. Maryland, 366 U.S. 420, 453 (1961) (opinion of the Court by Warren,
C. J.); McCollum v. Board of Educ., 333 U.S. 203, 248, 249 (1948) (dissenting opinion of
Reed, J.); Everson v. Board of Educ., 330 U.S. 1, 8, 10-12 (1947) (opinion of the Court
by Black, J.) ; id. at 33, 41, 44, 52, 53 (dissenting opinion of Rutledge, J.).
4SThe contention has been advanced that the clause's purpose was to prevent Congress
from interfering with the then existing state establishments. See, e.g., W. KATZ, RELIoION AND
A.
cac CoNsaTTuTIoNs 8-10 (1964); Snee, Religious Disestablishment and the Fourteenth
Amendment, 1954 WASa. U.L.Q. 371; Note, 61 Nw. U.L. REv. 760, 769-70 (1966). The late
Professor Howe found this argument "[glrammatically persuasive . . . [but] historically
unconvincing," and suggested that the language drafted supported "a related, but less radical,
interpretation of the prevailing policy" concerning the power of federal courts "to respect
state law when it happened to sustain a religious enterprise." M. HowE, supra note 40, at 23.
49
See generally, C. ANarmAu, A. DowNEy & E. Rorams, supranote 22, at 1-29.
GOP. KA-pER, supra note 5, at 14. See also, R. DRINAN, RIGON, THE COURTS, AND
PuBLic Poracy 231 (1963).
51 The contention is not made that every governmental action that may be fairly characterized as being exclusively for religious ends violates the establishment clause. If neither
of the additional elements discussed in text accompanying notes 52-53 infra is present, it
may persuasively be argued that, even though the governmental purpose is religious, it does
not threaten the evils at which the establishment clause (or the free exercise clause) was
directed, at least not in any meaningful sense. See also notes 53, 55 infra; Mansfield, Book
Review, 52 CAar. L. REv. 212, 219 (1964).
19681
AID TO PAROCHIAL SCHOOLS
argued elsewhere, 2 by compromising the individual's religious beliefs, or,
as outlined above, by directly coercing the individual to support religion
by allocating tax funds for sectarian use.53 On the other hand, governmental action for secular purposes does not fall within the core of the
establishment clause's concern 5 -the "nonestablishment guarantee is
directed at public aid to the religious activities of religious groups." 55
1. Conflicting Approaches
(a) Absolutism.-This circumscription of the establishment clause has
not met with universal approval. Some would have the clause invalidate
62 Choper, supra note 4.
53 This should be subject to a de minimis test. See id., at 351-53.
54If compliance with such governmental action involves compromise of religious or
conscientious beliefs, a free exercise violation may result. See, e.g., Sherbert v. Verner, 374
U.S. 398 (1963); In re Jenison, 265 Minn. 96, 120 N.W.2d 515, vacated and remanded, 375
U.S. 14, rev'd, 267 Minn. 136, 125 N.W.2d 588 (1963).
Whether such governmental action may still violate the establishment clause because
alternative means to obtain its secular end are available that less directly affect religion is
discussed in text accompanying notes 325-345 infra.
55P. FRausm, -PI-RrioAxD Tn PuBLic Sc~rooLs 11 (1965) (emphasis added). See also
Sky, supra note 42, at 1433: "[Tlhere is double historical support for the proposition that a
law providing tax funds to religious organizations for the specific purpose of supporting
religious functions is a 'law respecting an establishment of religion." (Emphasis added.)
The basic establishment clause rationale just outlined is meant generally to deal with
problems traditionally considered as arising under the nonestablishment ban-matters such
as direct or indirect public financial assistance to religious groups or institutions, religious
activities sponsored by government, religious pronouncements by public officials, coercive
state action coinciding with religious precepts-rather than with issues of alleged infringement
of individual religious liberty, conventionally adjudicated under the free exercise clause. No
comprehensive or final articulation of the establishment clause's every application is intended.
That task may not be undertaken without thorough consideration of the fundamental question of the interrelationship between the establishment and free exercise clauses and the
seeming "dilemmas" not infrequently posed thereby. See generally W. LOCKMART, Y. KAMSAR & '. CHoPER, CONSmUTIONAL LAW 1183-85 (2d ed. 1967).
In resolving a conflict between practices demanded by one's religion and civil regulation,
the Court has acknowledged that "to make accommodation between the religious action and
an exercise of state authority is a particularly delicate task." Braunfeld v. Brown, 366 U.S.
599, 605 (1961). Decision in favor of the former requires the state to serve the religious
interest of the individual. Such state action to prevent a free exercise clause violation may
be "defined" as being for a "nonreligious" purpose. See Choper, suPra note 4, at 393, 402.
See also Moore, The Supreme Court and the Relationshi Between the "Establishment" and
"Free Exercise" Clauses, 42 TExAs L. REv. 142, 196-97 (1963). In other instances, a state
may be permitted, although not required, to facilitate personal liberty by relieving a serious
burden placed on religious exercise by government action. See Mansfield, Conscientious Objection-1964 Term, 1965 RELuGiox & PuB. ORDR 3, 70-71 (D. Giannella ed.). See generally
Katz, Freedom of Religion and State Neutrality, 20 U. Car. L. REv. 426 (1953). Such a
course may be characterized as being for a "restorative or equalizing" purpose. See Galanter,
Religious Freedoms in the United States: A Turning Point? 1966 Wis. L. Rav. 217, 290-91.
These matters may well call for some qualification of the literal reach of the establishment
clause rationale set forth above. But cf. note 199 infra (last three paragraphs).
CALIFORNIA LAW REVIEW
[Vol. 56:26D
any governmental support to certain institutions controlled by a church
or religious organization "[e]ven if a completely secular part of [the
institution's services] could be isolated.""8 This seemingly "absolutist"
theory will be discussed below.5"
(b) Neutralism.--Anotherhighly respectable thesis falls on the opposite
side of the spectrum. Under the doctrine developed by Professor Kurland,
which states simply "that government cannot utilize religion as a standard
for action or inaction," 58 it would seem that government could constitutionally finance the entire operational costs of all state-accredited educational institutions, including those controlled by a religious organization,
because the classification-state-accredited educational institutionswhich includes most ordinary parochial schools, is not in the religious
terms which his doctrine forbids. 59
5
6 G. LANouE, PuBL c FUiDs rOR PAiocxnAL ScHools? 32 (1963).
57See text accompanying notes 346-353 infra.
58
Kurland, supra note 19, at 6. See also Hutchins, The Future of the Wall, in TnE
WALL BETWEEN CHURCH AND STATE 17, 22 (D. Oaks ed. 1963).
59
Professor Kurland's doctrine also addresses itself to a proper construction of the free
exercise clause, urging that it be considered abridged by a government "classification in
terms of religion . . . to impose a burden." Kurland, supra note 19, at 6. Under this test,
he would find a free exercise violation if government extended financial support to all stateaccredited schools except those that are church-related. Id. at 15 n.57, 70. See also Kauper,
Separation of Church and State-A Constitutional View, 9 CATHOrIC Law. 32, 42 (1963).
But he would find no violation if the government classification were "in terms of public
and non-public schools." Kurland, supra note 19, at 13 n.57.
A discussion of the implications of the free exercise clause on the aid to parochial school
question is generally beyond the scope of this article. It has been stated that the free exercise
rights of parents wishing to have their children educated in parochial schools are infringed if
aid equivalent to that given to public schools is not also extended to parochial schools. However, it has been vociferously maintained that the suggestion is "wholly unjustified," Letter
from Professor Howe to Senator Wayne Morse, in S. Doec. No. 29, 87th Cong., 1st Sess.,
at 50 (1961), and that the free exercise contention "elevate[s] an argument based on concepts
of equity to the dignity of a contention grounded in the Constitution." Id. See also U.S.
Dep't of Health, Education & Welfare, supra note 20, at 374-75; Pfeffer, supra note 43, at
14-18. But the contention is by no means "clearly without foundation," W. KATZ, supra
note 48, at 75.
Although the argument has been extant for some time, see V. BLum, FREEDOM OF
CHOIcE N EDUCAT ON 38-61, 106-32 (1958); W. PARSONS, THE FIRsT FREEDOM 122 (1948);
Henle, American Principles and Religious Schools, 3 ST. Lois U.L.J. 237 (1955); Weclew,
Church and State: How Much Separation?, 10 DE PA, L. Rzv. 1, 19 (1960); 1 BILL or
RiGsTs REv. 309 (1941), it has gained significant force from the Supreme Court's decision
in Sherbert v. Verner, 374 U.S. 398 (1963). Sherbert involved a state's denial of unemployment compensation benefits to a Seventh Day Adventist who would not work on Saturday,
the Sabbath Day of her faith; the state commissioner thus found that she had failed
"without good cause, to accept 'suitable work' .... " Id. at 401. The Court, in holding that
her rights under the free exercise clause were violated, made several salient points relevant
to the aid to parochial schools issue: First, it pointed out that Mrs. Sherbert's "ineligibility
for benefits derives solely from the practice of her religion." Id. at 404. Similarly, a Catholic
child attending a parochial school is ineligible for the financial benefits granted other stateaccredited schools (i.e., public schools) solely because of the dictates of his religion; that
19681
AID TO PAROCHIAL SCHOOLS
A shortcoming of this approach is that it permits the employment of
tax-raised funds for strictly religious purposes. Seemingly, this doctrine
would allow the use of public money for the construction of churches and
synagogues if the legislative classification were broad enough-say, a
statute allocating funds for new structures to house all voluntary associations, enacted on the ground that members lacked requisite resources for
Catholic parents have "the duty of entrusting their children to Catholic schools wherever
and whenever it is possible," Pope Paul VI, Decree on Christian Education (1965), reprinted
in 1 T. EmERsoN, D. HABER, & N. Doas.N, PoLrrcAL AD C:rI RIoHTs IN THE UNITED
1079, 1081 (3d ed. 1967), hardly requires citation. See also the Canon Laws of the
Roman Catholic Church, reproduced in Everson v. Board of Educ., 330 U.S. 1, 22-23 (1947)
(dissenting opinion of Jackson, J.). But cf. R. DRINAN, supra note 50, at 190-92. Second,
the Court noted that "the pressure upon [Mrs. Sherbert] to forego [her religious] practice
is unmistakable," 374 U.S. at 404. Given the well-publicized financial predicament of
parochial schools and the importance of effective education to children, a similar pressure
exists to attend a better financed public school. Third, as in Sherbert, denying financial aid
to parochial schools "forces [the Catholic child] to choose between following the precepts
of [his] religion and forfeiting benefits, on the one hand, and abandoning one of the precepts
of [his] religion ... on the other hand." Id. Finally, the Sherbert Court concludes that "to
condition the availability of benefits upon this appellant's willingness to violate a cardinal
principle of her religious faith effectively penalizes the free exercise of her constitutional
liberties." Id. at 406. It is not difficult to reach a similar conclusion in respect to denying
public aid to Catholic parochial schools. See generally School Dist. v. Schempp, 374 U.S. 203,
312-13 (1963) (dissenting opinion of Stewart, 3.); Blum, Our Federal Constitution and
Equal Justice in Education, in EDUCATIONAL FREEDOM AND THE CASE FOR GOVER NENT AID
TO STUDENTS IN INDEPENDENT SCHOOr.S 154-57 (D. McGarry & L. Ward eds. 1966) [hereinafter cited as EDUCATIONAL FREEDom]o; BIum, Freedom and Equality, in FEDERAL AID AND
CATHOLIC SCHOOLS 43, 51-54 (D. Callahan ed. 1964); Drinan, Does State Aid to ChurchRelated Colleges Constitute an Establishment of Religion?-Reflections on the Maryland
College Cases, 1967 UTAH L. RPv. 491, 511-15; Farhat, The Michigan School Bus Law,
MICH. STATE B.J., Apr. 1964, at 28, 31; Regan, Religious Neutrality, 110 AaEERA 74 (1964);
Rice, The New York State Constitution and Aid to Church-Related Schools, 12 CATHOLIC
LAw. 272, 321 (1966) ; 19 S.C.L. Rzv. 242 (1967).
It may even be argued that the free exercise claim for aid to parochial schools is yet
more compelling than Mrs. Sherbert's successful claim. When the state sends Mrs. Sherbert
her unemployment compensation check, as the Court ordered that it do, thus excusing her
from taking "suitable work" because of her conscientious scruples, the state's action is taken
solely to facilitate religious exercise-the state's purpose may be said to be religious. See
note 55 supra. In the view of some analysts, such action raises serious establishment clause
problems. See Kurland, supra note 19, at 94; cf. Sherbert v. Verner, supra, at 415 (concurring opinion of Stewart, J.). But when the state finances the nonreligious aspects of
education in parochial schools, its purpose, as will be demonstrated infra, see text at notes
145-149, is secular, thus removing this possible objection. See W. LOCE:HART, Y. KAMISAR &
J. CHOPER, CONSTITUTIONAL LAW 1185-86 (2d ed. 1967).
STATES
It is not meant by this brief discursiveness to speculate as to the Court's resolution of
the free exercise claim if it were advanced. In fact, the Court's denial of certiorari in Swart
v. South Burlington Town School Dist., 122 Vt. 177, 167 A.2d 514, cert. denied, 366 U.S.
925 (1961), in which the state court rejected the contention, does not bode well for its
ultimate success. See also Dickman v. School Dist., 223 Ore. 347, 366 P.2d 533 (1961),
cert. denied, 371 U.S. 823 (1962). Nor is it meant to suggest that the persuasiveness of the
free exercise argument follows conclusively from Sherbert. Perhaps a "compelling state
interest," 374 US. at 406, found necessary but wanting in Sherbert, to justify the "sub-
CALIFORNIA LAW REVIEW
[Vol. 56:260
such undertaking." Although such a statute may not be said to give intentional and purposeful support to religion, 6 ' in the sense that it "singles out
2
a religion, or religions generally, for direct financial assistance,""o
this
particular statute's clear effect contradicts a vital value underlying the
establishment clause.63 The breadth of the classification-using tax funds
to support buildings for the Rotary, Odd Fellows, and Chamber of Commerce, in addition to recognized (and nonconformist) religions-would
seem to many people only to add pocketbook insult to constitutional
injury.6 4 Even the most avid proponents of aid to parochial schools would
seem to agree that such subsidies of religion are not permissible 5 Whether
consciously or not, the "official support of the State or Federal Governstantial infringement," id., of the free exercise right will be shown in the aid to parochial
schools context-perhaps the essentiality of conserving the public fisc, perhaps the notion
(with which I disagree) that to grant the aid would itself violate the letter or spirit of the
establishment clause. The point is that the free exercise allegation is surely not "sheer
sophistry," 78 CmRsTrAx CENTuRY 508 (1961) (editorial).
Father Drinan has made the following contention for the constitutional compulsion of
aid to parochial schools: because "of clear Supreme Court rulings precluding sectarian
teaching and religious practices in public schools it can be persuasively argued that the
granting of funds only to the public school is a violation of the establishment clause because
such a policy endorses and prefers one educational and philosophical orthodoxy [a "religion
. . . of secularism," R. D~UNAN, supra note 50, at 1933 over all others." Drinan, The
Constitutionality of Public Aid to ParochialSchools, in Tsm WALL BETWEEN CILURczr AND
STATE 55, 72 (D. Oaks ed. 1963). Even if the "religion of secularism" assumption were to be
valid, but see note 224 infra, the contention as a plea for financial aid must fail. It ignores
the Court's unequivocal pronouncement that the establishment clause forbids governmental
support of all religions, not merely preference of one religion over another. School Dist. v.
Schempp, 374 U.S. 203, 216 (1963). See also S. HooK, RELIGION 11T A FREE Socxmxn 16
(1967).
60
See LaNoue, The Child Benefit Theory Revisited: Textbooks, Transportation and
Medical Care, 13 J. PuB. L. 76, 89 (1964).
With respect to the free exercise clause, the Kurland thesis has been recently rejected
by the Court in Sherbert v. Verner, 374 U.S. 398 (1963). With respect to the establishment
clause, the Court, consistent with the Kurland thesis, has to date invalidated only governmental action strictly directed to religious ends. McCollum v. Board of Educ., 333 U.S. 203
(1948); Torcaso v. Watkins, 367 U.S. 488 (1961); Engel v. Vitale, 370 U.S. 421 (1962);
School Dist. v. Schempp, 374 U.S. 203 (1963). But it is fair to note that the thesis has never
really been put to the test in the establishment cases, as in a situation just hypothesized
in the text.
61 Cf. McCollum v. Board of Educ., 333 U.S. 203, 248 (1948) (dissenting opinion of
Reed, J.).
62
fDunsford, supra note 42, at 205.
6 See text accompanying notes 43-50 supra. See also U.S. Dep't of Health, Education &
Welfare, supra note 20, at 373.
64
But cf. 77 HARv. L. REv. 1353, 1357-58 (1964).
65
See Hearings on H.R. 2361, supra note 35, at 821 (Statement of Msgr. McManus). See
also R. DanrN, supra note 50, at 231; statement of Msgr. Gallagher, quoted in id. at 29. The
fact that a public subsidy of religion may attract more people to it, thus resulting in a net
increase in the operating costs of the church, see Matthews v. Quinton, 362 P.2d 932, 953
(Alas. 1961) (dissenting opinion), is, of course, irrelevant to the analysis.
19681
AID TO PAROCHIAL SCHOOLS
of one or of all orthodoxies. This
ment would be placed behind the tenets
66
the Establishment Clause prohibits.2
(c) Divisiveness.-It has frequently been declared that the function of
the establishment clause is "above all, to keep bitter religious controversy
out of public life by denying to every denomination any advantage from
getting control of public policy or the public purse."67 The conflict among
religions brought about by a struggle for public funds is surely unfortunate
and undesirable."8 And upholding the constitutionality of some amounts of
aid to parochial schools or to the children that attend them might well push
in this direction.69 One might agree that "if government interferes in
matters spiritual, it will be a divisive force,"7 thus making such action
constitutionally suspect. But to make "divisiveness" determinative of
constitutionality, despite the secular nature of the governmental program
in controversy, is neither a desirable nor a workable approach to the
71
problem.
Whether rightly or wrongly, the various churches and religious groups
have exerted powerful political influence in national and state legislative
halls7 2 -frequently in disagreement with one another-concerning such
causes as Sunday closing,73 gambling, prohibition, abolition, integration,
overpopulation, birth control, sterilization, marriage, and divorce. Surely
such legislation is not therefore invalid. Nor would a denial of aid to
parochial schools largely diminish the extent of religious political activity.
In fact, it "might lead to greater political ruptures caused by the alienation
of segments of the religious community."7 4 Those who send their children
to parochial schools might intensify opposition to increased governmental
aid to public education on the ground that it raises their taxes without
direct personal benefit, decreases their financial ability to support the
parochial schools, and augments the operational costs of parochial schools
seeking to maintain qualitative parity with the improved public schools.75
66 School Dist. v. Schempp, 374 U.S. 203, 222 (1963).
67 Everson v. Board of Educ., 330 U.S. 1, 27 (1947) (dissenting opinion of Jackson, J.).
See also McCollum v. Board of Educ., 333 U.S. 203, 228 (1948) (concurring opinion of
Frankfurter, J.).
68
See Van Alstyne, Constitutional Separation of Church and State: The Quest for a
Coherent Position, 57 A.m. PoL. Sci. Rv. 865, 868 (1963).
69 See Everson v. Board of Educ., 330 U.S. 1, 53-55 (1947) (dissenting opinion of
Rutledge, J.); A. j oNsox & F. YOST, supra note 28, at 113.
70 Engel v. Vitale, 370 U.S. 421, 443 (1962) (concurring opinion of Douglas, J.).
71 See Choper, supra note 4, at 385-86.
72 See M. HowE, supra note 40, at 62; P. KAuPER, supra note 5, at 83-85; PmIGooN
AxD Ai!ERIc=aq Socsy, supra note 42, at 71; see text accompanying notes 100-01 infra.
73 See McGowan v. Maryland, 366 U.S. 420, 435 (1961).
74 77 HEAv. L. Rav. 1357 (1964).
75 Cf. Mitchell, Religion and Federal Aid to Education, 14 LAw & CoNTsiv. PaoB. 113,
122-27 (1949); Whelan, School Question: Stage Two, 105 Amrm 17 (1961).
CALIFORNIA LAW REVIEW
[Vol. 56:260
2. Application to the States
Before proceeding further, certain other peripheral matters may be
treated. The discussion to this point has assumed that the first amendment's mandate, that "Congress shall make no law respecting an establishment of religion," is equally applicable, -through the fourteenth amendment, to action by the states. This has been the Court's consistent position
and, in view of this, the Court has recently noted that contrary arguments
"seem entirely untenable and of value only as academic exercises.""
Examination of the dispute, however, may help to clarify the scope of
the establishment clause. The relevant fourteenth amendment language
is that "no State shall... deprive any person of life, liberty, or property,
without due process of law...." It is therefore asserted that the fourteenth
amendment should forbid only those violations of the first amendment's
establishment clause that "significantly affect the secured liberties of
individuals"77 so as to deprive them of such liberty without due process of
law-the implication being that some establishment clause infractions do
not significantly impair fourteenth amendment liberties. 78 It is this suggestion that may be challenged.
The suggestion assumes that while the fourteenth amendment prevents
infringements of liberty which "significantly affect" the individual, the
first amendment forbids abridgements which do not do so. It bears
repeating, however, that a central design of the establishment clause was
that it act "as a co-guarantor, with the Free Exercise Clause, of religious
liberty, ' M by preventing the government generally from coercing religious
belief and specifically from compulsorily taxing individuals for strictly
religious purposes.8 0 If nonsecular federal action involves either of these
consequences, I would suggest that it has "significantly" affected indi76 School Dist. v. Schempp, 374 U.S. 203, 217 (1963). See generally id. at 215-16.
77
Howe, The Constitutional Question, in Religion and the Free Society, supra note 17,
at 49, 61. See also P. KAvirn, supra note 5, at 56.
78
See M. HowE, supra note 40, at 138.
79 School Dist. v. Schempp, 374 U.S. 203, 256 (1963) (concurring opinion of Brennan,
J.). See also id. at 227 (concurring opinion of Douglas, J.); id. at 312 (dissenting opinion
of Stewart, J.); Lardner, How Far Does the Constitution Separate Church and State?, 45
Air. PoL. Scr. REv. 110, 128 (1951); note 42 supra.
Whatever the historical foundation for the notion that the clause was intended to bar
Congress from disestablishing the state establishments, see note 48 supra, it is of little pragmatic relevance today because of the nonexistence, and patent invalidity under the fourteenth
amendment, of any formal state establishment. Of course, as a matter of logic, this purported
goal of the establishment clause could not be made applicable to the states through the
fourteenth amendment. See W. KATZ, supra note 48, at 11.
80 See text accompanying notes 43-50 supra.
1968]
AID TO PAROCHIAL SCHOOLS
vidual freedom."' Thus, if such state action involves either,8 2 it has seemingly violated the fourteenth amendment by "significantly" affecting
personal liberty. 88 However, if federal action involves neither consequence, then I would suggest that the establishment clause itself-as a
matter of constitutional construction-has probably not been breached.
The establishment clause, in sum, may well ban no activity that should
not also be held to violate the fourteenth amendment, consistent literally
with the latter's relevant language.8 4
3. Standing of Federal Taxpayers
The question of a federal taxpayer's standing to challenge federal
aid to parochial schools-or, for that matter, aid for church construction itself-is generally beyond the scope of the discussion. 5 But again,
brief inquiry may be enlightening in examining the reach of the establishment bar.
Frothingham v. Mellon8 6 holds that a taxpayer's interest in federal
appropriations is too minute, remote, uncertain, and indeterminable to
support a suit challenging federal spending. Whether the decision rests
on a finding that the matter therefore does not meet the "case or controversy" requirement of article III of the Constitution, or whether it is
81 See note 51 supra. See School Dist. v. Schempp, 374 US. 203, 295 (1963) (concurring
opinion of Brennan, J.); id. at 308 (concurring opinion of Goldberg, J.). See also Choper,
supra note 4, at 331 n.8. Cf. text accompanying note 333 infra.
82 See text accompanying notes 51-53 supra.
83 Such use of tax funds might also be characterized as a deprivation of property without
due process of law.
84 For an interesting and novel analysis that would make the religion clauses of the first
amendment applicable to the states via the equal protection clause of the fourteenth amendment, see Kauper, The Constitutionality of Tax Exemptions for Religious Activities, in T
VALL BETWEEN CnunCH AND STATr 95, 101-02 (D. Oaks ed. 1963).
85
The issue of whether the rule of Frothingham v. Mellon, 262 U.S. 447 (1923), bars a
suit by a federal taxpayer challenging aid to parochial schools is specifically presented in
a case now pending before the Supreme Court. Flast v. Gardner, 271 F. Supp. 1 (S.hN.Y.),
prob. juris. noted, 389 U.S. 895 (1967). See also Elliott v. White, 23 F.2d 997 (D.C. Cir.
1928) (no standing); Protestants and Other Americans United v. O'Brien, 272 F. Supp. 712
(D.D.C. 1967) (no standing); Protestants and Other Americans United v. United States,
266 F. Supp. 473 (S.D. Ohio 1967) (no standing).
That local and state taxpayers have standing in the Supreme Court, if granted standing
in the state court, to challenge local and state expenditures seems clear from the decided
cases, Everson v. Board of Educ., 330 U.S. 1 (1947); Cochran v. Louisiana State Bd. of
Educ., 281 U.S. 370 (1930), although the issue has rarely been discussed by the Court. See
Doremus v. Board of Educ., 342 US. 429 (1952). The possibility that a taxpayer's suit to
enjoin state expenditures allegedly in violation of the establishment clause might lie in the
federal district courts despite the state's refusal to recognize such an action is discussed in
Sutherland, Due Process and Disestablishment, 62 HARv. L. REv. 1306, 1330-35 (1949).
80262 U.S. 447 (1923).
CALIFORNIA LAW REVIEW
[Vol. 56:260
based only on a judicial rule of self-limitation, is unclear.87 But even if
it is the former, a taxpayer's suit based on an alleged establishment clause
violation is arguably distinguishable from Frotingham.
The ordinary federal taxpayer's suit urges simply that the congressional appropriation is ultra vires-beyond the national power and thus
"reserved to the States" by the tenth amendment. The gravamen of the
claim is that there has been a violation of states' rights (although the
allegation is frequently added that this results in a deprivation to the
individual of property without due process of law88). In such circumstances, the Court has good reason to decline jurisdictionS"-to find
"essentially a matter of public and not of individual concern";1 to require the taxpayer "to show ... that he has sustained or is immediately
in danger of sustaining some direct injury . . . and not merely that he
suffers in some indefinite way in common with people generally."'"
When the federal taxpayer's suit urges that the congressional appropriation violates the establishment clause, however, his claim is not merely
one of ultra vires. The expenditure of compulsorily raised tax funds for
religious purposes, both historically and contemporarily, may well be
characterized as an abridgment of individual religious liberty." The
issue is not only one of states' rights; it may be one of alleged governmental infringement of individual rights protected by the Constitution. 8
"Direct injury" has allegedly been "suffered"-and not "in some indefinite way."0 " Mr. Justice Jackson recognized that "[o]ne of our basic
8
7 This issue would be crucial were Congress to enact a statute authorizing taxpayers to
attack federal expenditures on establishment grounds. Such legislation has, at different times,
passed the House, H.R. 4643, 81st Cong., 1st Sess. § 5 (1949), and the Senate, S. 2097, 89th
Cong., 2d Sess. (1966), but never both houses together. If Frothingham were based on article
HI, such legislation would be unconstitutional. Compare Manning, Aid to EducationFederalFashion, 29 FoRDnA L. Rzv. 495, 506 (1961); U.S. Dep't of Health, Education &
Welfare, supra note 20, at 381; Comment, 8 VmL. L. REV. 224, 230-31 (1962-63), with
Professor Jaffe's view in Dorsen, supra note 33, at 51. On this possibility, a number of
legislative devices, other than a taxpayer's suit, have been developed as conceivable avenues
for testing federal expenditures under the establishment clause. See Jaffe, supra, at 64-65;
U.S. Dep't of Health, Education, & Welfare, supra note 20, at 382; 77 HARv. L. Rav.
1357, 1360 (1964). See also Tna, Nov. 25, 1966, at 55-56. The Elementary and Secondary
Education Act of 1965, 20 U.S.C. §§ 241k, 827, 869 (Supp. 1, 1965), presents this potential.
See Drinan, Standing to Sue in Establishment Cases, 1965 RELIGION & Pun. ORnERn
161, 165
(D. Giannella ed.).
88E.g., Frothingham v. Mellon, 262 U.S. 447, 482, 486 (1923). See generally Lewis,
Constitutional Rights and the Misuse of "Standing," 14 STr. L. Riy. 433 (1962).
89See Choper, On the Warren Court and Judicial Review, 17 CATROLIC U.L. Rav. 20,
39-40 (1967).
90 Frothingham v. Mellon, 262 U.S. 447, 487 (1923).
91 Id. at 488.
92 See text accompanying notes 43-50, 79-80 supra.
S3 See Choper, supra note 89, at 39-41.
94
Frothinghara v. Mellon, 262 U.S. 477, 488 (1923).
AID TO PAROCHIAL SCHOOLS
rights is to be free of taxation to support a transgression"95 of the establishment clause; that the Court "had jurisdiction" "[w]here a complainant is deprived of property by being taxed . . .to support a religious
establishment."' 90 Thus, Frothinghammay be inapplicable to a suit based
7
not on the tenth amendment, but rather on the establishment clause .
The establishment clause rationale described herein concludes that
the clause generally forbids nonsecular governmental action which infringes religious beliefs and specifically bars coercive taxation for
strictly religious purposes. Under this rationale, governmental spending
for secular purposes is permissible. This rationale is not only consistent
with contemporary and historical values underlying the establishment
clause, but also affords an evaluative perspective for the problems of the
role of the fourteenth amendment and the question of standing to sue.
DEFINITION OF SECULAR PURPOSE
The broad establishment clause rationale described above would
generally forbid government expenditures for strictly religious purposes
and would bar governmental action for these purposes if infringements
of religious liberty followed. On the other hand, it would generally permit
the state to act for secular purposes. Thus, it is analytically critical to
decide what constitutes a secular purpose and how it should be determined. This is frequently a perplexing inquiry because a law may be
enacted for a multiplicity of purposes and may produce a multiplicity
of effects.98 A Sunday closing law, for example, may have the secular
purpose of promoting the general welfare by creating a day of respite
or the religious purpose of forbidding work to enhance church attend99
ance.
Certain aspects of the problem are quite clear. The fact that religious
groups sponsored a law-or even were its sole sponsors-does not make
its purpose nonsecular; 100 the Civil Rights Act of 1964 might not have
passed without the support of churchmen. 10 Nor, with the rare and
95
9
Everson v. Board of Educ., 330 U.S. 1, 22 (1947) (dissenting opinion).
6 McCollum v. Board of Educ., 333 U.S. 203, 233-34 (1948) (concurring opinion).
9
7 An allegation that federal funds are being expended for religious purposes, sufficient
to support standing, should not, of course, be misidentified with the question of whether the
money is in fact being so used-which goes to the merits of the case. But see Drinan, supra
note 87, at 172.
D8 See Van Alstyne, supra note 68, at 875.
99 See McGowan v. Maryland, 366 U.S. 420 (1961).
10o See text following note 72 supra.
10 1
See Carroll, The Constitution, The Supreme Court, and Religion, 61 Am. PoL. Sci.
Rlrv. 657, 662 (1967).
CALIFORNIA LAW REVIEW
[Vol. 56:260
limited qualification to be noted below,10 2 should existence of a secular
purpose turn on judicial examination of legislative motives'°--a long,
forbidden psychoanalytic attempt to find the "real reason," articulated
or unspoken, for passing a law."0 4 Rather, whether government action is
secular or religious should generally be determined by the nature of its
independent or primary effect (a term to be illustrated below, and not to
be confused with "principle" or "paramount" effect). If the primary
effect is to accomplish a nonreligious public purpose, the action should
generally be held immune from establishment clause attack. 105 But if the
primary effect is to serve a religious end, the action's purpose should not
be characterized as secular even though an ultimate or derivative public
benefit may be produced.'
A. Illustrations
Specific instances are necessary to illustrate the point. It has been
maintained that public school prayer recitation and Bible reading serve
the secular purpose of producing profound convictions in children, thus
making them better citizens.' But if such are the effects, they come
about only if the primary goal of these practices-the implanting of
spiritual and religious beliefs-is achieved; the purported secular ends
are derivative from the primary religious effect. Thus, under the analysis
suggested above, the purpose of the governmental action is religious.
Sunday closing laws also serve an undeniably religious end by encouraging church attendance in removing the obstacle of having to report for work. But they also produce an independent secular effect-"a
08
Sunday atmosphere of recreation, cheerfulness, repose and enjoyment.'
And this secular effect is in no way dependent on or derived from the
religious impact of the statute.
Governmental actions whose secular benefits flow from the achievement of a primary religious effect must be suspect under the establishment clause. 9 Such actions "employ Religion as an engine of Civil
10 2 See text accompanying note 114-24 infra.
l03 Van Alstyne, supra note 68, at 876.
0 4
'
See McGowan v. Maryland, 366 U.S. 420, 466, 469 (1961) (concurring opinion of
Frankfurter, J.); A. Bice=L, THE LEAST DAwGERous BRANCH 208-21 (1962).
105 See text accompanying notes 325-45 infra.
10 6
See Choper, supra note 4, at 334-38. See also Hammett, The Homogenized Wail, 53
A.BA.J. 929, 933 (1967).
107
See discussion in Choper, supra note 4, at 336.
108
McGowan v. Maryland, 366 U.S. 420, 448 (1961).
109 1 have argued that such actions should be invalid if either of two additional factors
are present. See text accompanying notes 51-53 supra. This distinction should satisfy the
objection of Lardner, supra note 79, at 132, that "the public welfare argument amounts to
the automatic validity of all legislation" because "[alll legislation in a democracy arises
AID TO PAROCHIAL SCHOOLS
policy." 0° Allowing such actions would literally read the clause out of the
first amendment; it would justify government subsidization of that church
that the government found best inculcates its members with the deep
convictions that make for better citizenship."' But governmental action
that produces independent secular efforts should generally be unassailable
even if an equally necessary or inevitable effect is the benefitting of religion. If not, the fire department could not protect burning churches.
B. Judicial Determinations
This is not to say that the task of distinguishing primary religious and
secular effects is always free of difficulty. But usually it is. Thus, in
Torcaso v. Watkins, the Court observed that there could be "no dispute
about the [religious] purpose or effect" 1 2 of a requirement that public
officeholders declare a belief in God. And in Engle v. Vitale, the Court
had "no doubt that ... daily classroom invocation of ... the Regents'
3
prayer is a religious activity.""
On occasion, governmental action with a primary religious effect
may be wrapped "in the verbal cellophane"" of a secular purpose. Thus,
in the Bible Reading Cases the state argued secular purpose--"the promotion of moral values, the contradiction to the materialistic trends of
our times, the perpetuation of our institutions and the teaching of literature." ' 6 The Court easily rejected the assertion, agreeing instead with
the trial court's finding that the exercises had a religious character." 8
In such instances, the Court is not-nor should it be--making the
from the belief that it promotes the public welfare," and that of Carroll, supra note 101,
at 662-63.
110
J.MADISON,
MExORIAL AND R.EMONSTRANCE AGAINST RImGIOUS ASSESSMETS,
f 5,
set forth in Everson v. Board of Educ., 330 U.S. 1, 67 (1947) (app.).
111 See text at note 107 supra. See also McCloskey, Principles, Powers, and Values: The
Establishment Clause and the Supreme Court, 1964 REmIGiON & PuB. ORDER 3, 26 (D Giannella ed.): "(A] religious law for a religious end . . . . offends one religious conscience in
the name of another, and unless we reject the sovereignty of religious belief, we must find
this blameworthy. Nor is such a law vindicated by the contention that it employs religious
means to a secular end, i.e., the development of a moral citizenry which will in turn produce
a just and happy society. For whatever tendency the means have to accomplish that end
may be canceled by their simultaneous tendency to generate the bitterness that makes such
a society difficult." See also School Dist. v. Schempp, 374 U.S. 203, 278-81 (1963) (concurring opinion of Brennan, J.).
112.367 U.S. 488, 489 (1961).
113 370 U.S. 421, 424 (1962).
114United States v. Kahriger, 345 U.S. 22, 38 (1953) (dissenting opinion of Frankfurter, J.).
115 School Dist. v. Schempp, 374 U.S. 203, 223 (1963).
110 Id. Similarly, I suggest that the Court would reject the contention that requiring the
memorization of the Catechism in public schools serves the secular purpose of teaching the
technique of memory. But cf. Paul v. Dade County, 202 So. 2d 833 (Fla. Dist. Ct. App.
1967).
CALIFORNIA LAW REVIEW
[Vol. 56:260
judgment that any secular purpose of the law fails to be paramount over
whatever religious end the church obtains by the regulated conduct."1
For the Court to engage in such an ad hoc balancing process"--relying
only on the Justices' subjective notions of paramountcy-to treat the
problem as "one of degree," 110 is not satisfactory when more objective
standards are available. 0 Even where a religious purpose exists, the
state's secular purpose need not be dominant or paramount;1 2 1 the existence of a "legitimate" independent primary secular purpose should be
sufficient. The determination of "legitimacy" by the Court undeniably
involves the making of a not wholly objective judgment. But, unlike the
"dominancy-paramountcy" inquiry, it is a judgment of a quite limited
nature, mainly disposed of by common sense and observation of the
obvious effects of the enactment. 22 Although the inquiry is necessitated
by a recognition that a disingenuous legislature can easily find secular
purposes to cover any religious interest it wishes to further, 2 ' such a
cover is almost always revealed as cellophane.'2 4
A few additional illustrations may be helpful. In 1921, the California
legislature appropriated 10,000 dollars for the restoration of the San
Diego Mission, 2 5 resulting in an unquesionable financial benefit of a
strictly religious nature to the Roman Catholic Church, which owned
and controlled the mission for the use of its parishioners. There was also
an independent primary secular effect, however, in no way derived from
the religious impact of the action, which could not be fairly characterized
as a mere "cover." As the court noted, the missions have significant
architectural, historical, and educational value, and the aid therefore
served a secular esthetic purpose. Under the proposed analysis, this
should generally be adequate to establish constitutional validity. 20 It
27
might be added, as a persuasive rather than a constitutional argument,
that it is reasonable to believe that reconditioning the mission would
pay financial dividends to the state treasury, by increased tourism, in
excess of its cost. The mission case thus involved no possible infringement
llTBut see Hammett, supra note 106, at 932. See also Note, The Elementary and
Secondary Education Act of 1965 and the First Amendment, 41 IND. L.J. 302, 324 (1966).
118 See text accompanying note 447 infra.
119 Zorach v. Clauson, 343 U.S. 306, 314 (1952) (Douglas, J.).
120 See Choper, supra note 4, at 335.
121 But see Hammett, supra note 106, at 932.
122 See, e.g., School Dist. v. Schempp, 374 U.S. 203, 223-25 (1963). See text following
note 231 infra.
123 LaNoue, supra note 60, at 77-78.
124See generally Van Alstyne, supra note 68, at 876-77.
125 Frohligher v. Richardson, 63 Cal. App. 209, 218 P. 497 (1923).
126 The California court, however, found the action violative of the state constitution.
127 See text following note 158 infra.
1968l
AID TO PAROCHIAL SCHOOLS
of religious or conscientious scruples,
either directly or through diversion
1 28
of tax funds to religious purposes.
A municipality should not, however, be permitted to allocate public
funds to build houses of worship for the purpose of encouraging churchgoing people to live in the community. In contrast to the mission restoration example discussed above, which attracted people by appealing to
their esthetic and educational interests, this plan would publicly finance
the religious needs of individuals in order ultimately to derive a secular
goal. Even though the plan might increase the general tax base in the
community, 129 thus compensating the public for its religious expenditure,
its primary effect-from which the secular end would be derived80
would be religious.
Finally, it has been suggested that, as part of a state's mental health
budget, funds might be granted to the Roman Catholic Church and the
Protestant Episcopal Church to subsidize confession costs because of
their therapeutic value. 31 But it would seem here that the purported
therapeutic benefit-which we may concede is secular-would come
about only as a result of the confessor's having obtained spiritual satisfaction. The exclusive primary effect is religious. 32
C. Supreme Court Rationale
The rather specific rationale of several decisions of the Supreme
Court is consistent with this "secular purpose" approach. In the School
Bus Case,1 33 the Court acknowledged that the governmental program
substantially benefitted religion in the "possibility that some of the
children might not be sent to the church schools if the parents were com128 Similarly, an expenditure by the Utah legislature to construct a building for the
preservation and display of relics, highly important to the Mormon religion but also of great
historical significance in the state's development, serves an independent primary secular goal.
See Thomas v. Daughters of Utah Pioneers, 114 Utah 108, 197 P.2d 477 (1948). So, too,
would an appropriation by the Los Angeles County Board of Supervisors to a religious
association for the purpose of preparing a motion picture film of the latter's annual sectarianoriented Christmas parade, if the film were to be distributed throughout the country "to
exploit and make known the resources of the County and thereby increase its trade and
commerce." County of Los Angeles v. Hollinger, 221 Cal. App. 2d 154, 156, 34 Cal. Rptr.
387, 389 (1963) (invalid under state constitution). See also 37 OP. CAL. ATr'Y GEN. 105
(1965).
129 Murray v. Comptroller of the Treasury, 241 Md. 383, 402-04, 216 A.2d 897, 908-09,
cert. denied, 385 U.S. 816 (1966).
130 See text following note 158 infra.
13 1
Davidow, Governmental Aid to Church-Affiliated Colleges: An Analysis of a Possible
Answer to the Constitutional Question, 43 N.D.L. REv. 659, 679 (1967).
132 This should be contrasted with public aid to divinity schools to train students to
recognize mental illness. See U.S. Dep't of Health, Education & Welfare, supra note 20, at
375-76 n.18.
133 Everson v. Board of Educ., 330 U.S. 1 (1947).
CALIFORNIA LAW REVIEW
[Vol. 56:260
pelled to pay their children's bus fares out of their own pockets when
transportation to a public school would have been paid for by the
State." 184 Yet, the Court upheld public payment of the bus fares of
parochial school pupils as "public welfare legislation" protecting "children
going to and from church schools from the very real hazards of traffic." '
There was a legitimate independent primary secular purpose and effect.18
8
The Court utilized the same analysis in the Sunday Closing Law Case,'1
recognizing that the establishment clause "does not ban federal or state
regulation of conduct whose reason or effect merely happens to coincide
or harmonize with the tenets of some or all religions.' 8s8
In the Bible Reading Case,3 9 the Court was most explicit. It laid
down a "test" as follows: "what are the purpose and primary effect of
the enactment? If either is the advancement or inhibition of religion then
the enactment exceeds the scope of legislative power as circumscribed
by the Constitution. That is to say that to withstand the strictures of the
Establishment Clause there must be a secular legislative purpose and a
40
primary effect that neither advances nor inhibits religion.'1
If the Court meant that there is an establishment clause violation if
the purpose and primary effect is religious but that there is no such
violation if a secular legislative purpose and primary effect exists, and
if the Court used the word "primary" as I have used it in the discussion
above-that is, as distinguished from "ultimate" or "derivative"" 1 -- then
the Court's test essentially states the reasoning that I have employed."4
In fairness, this places undue weight on tiny words which usually
denote no such significance. The Court may perhaps have drafted the
test not for the specific situation in Schempp, but for the question of aid
Id. at 17.
135Id. at 16-17.
130 See note 510 infra; Comment, 45 McH. L. REV. 1001, 1021 n.89 (1947).
137
McGowan v. Maryland, 366 US. 420 (1961).
138 Id. at 442. Neither, it would seem, should the clause ban "federal or state [financial
aid] whose reason or effect merely happens to coincide or harmonize with" the aims of
some or all religions, if a primary effect of such aid is for "the general welfare of society," Id.
139 School Dist. v. Schempp, 374 U.S. 203 (1963).
140 Id. at 222.
141 Mr. Hammett argues, supra note 106, at 933, that the Court's intention on this point
was to assure that the enactment does not enhance the financial strength of the church to a
greater extent than it augments the influence of or benefit to the state. How the Court is to
measure these relative increases in power is not clear. He may mean, as I have suggested,
that ther.e must be an independent secular benefit commensurate with the state aid. But if
he means that the members of the Court must individually weigh these church and state
factors in each case, then serious objection may be raised. See text accompanying notes
117-20 supra.
142For support of this view, see Kauper, supra note 18, at 12-13. See also Kauper,
Religion, Higher Educationand the Constitution,19 Ar... L. REv.275, 288 (1967).
134
1968]
AID TO PAROCHIAL SCHOOLS
to parochial schools. 143 Even so, because of differing inferences that may
be drawn, it provides no ready answer. Perhaps, on the other hand, the
Court was concerned only with the problem before it. 44 In any case, my
only contention is that the Schempp "test" is not inconsonant with the
"secular purpose" approach proposed herein.
IV
AID TO PAROCHIAL SCHOOLS
A. Secular Purpose
At least some governmental aid to support parochial education serves
a primary or independent secular purpose. No one can deny the state's
legitimate interest in improving the educational quality of all schools, 145
or the benefits to society in general from education, 40 or even the national
defense interest in an enlightened citizenry.14 7 The fact is that "parochial
elementary and secondary schools educate one out of every eight future
citizens of this country, and that the teacher and classroom needs of
parochial school systems are possibly even more serious than are those
of the public school systems."' 48
Even Mr. Justice Rutledge, in his vigorous dissent in Everson, admitted that "it is much too late to urge that legislation designed to
facilitate the opportunities of children to secure a secular education serves
no public purpose."'
49
is position was that the establishment clause
Sky, supra note 42, at 1441.
See Horace Mann League v. Board of Pub. Works, 242 Md. 645, 220 A.2d 51, 64,
cert. denied, 385 U.S. 97 (1966) ; LaNoue, supra note 60, at 78-79.
145 Board of Educ. v. Allen, 20 N.Y.2d 109, 116, 228 N.E.2d 791, 794, 281 N.Y.S.2d
799, 804 (1967), prob. juris. noted, 36 U.S.L.W. 3278 (U.S. Jan. 15, 1968). See also Amdursky, The First Amendment and FederalAid to Church-Related Schools, 17 SYRAcuSn L. REV.
609, 624 (1966).
14o Malloy, How to Talk About FederalAid, 105 AmmucA 421, 422 (1962).
147 Sky, supra note 42, at 1448.
148 Actions of the General Assembly of the United Presbyterian Church in the USA.
Supporting Federal Aid to Public Primary and Secondary Education, in 5 Hearings on S.
370 Before the Subcomm. on Education of the Senate Comm. on Labor and Public Welfare,
89th Cong., 1st Sess., at 2890 (1965). It is not the purpose here to document the alleged need
of parochial schools for financial assistance. But several interesting facts might be mentioned:
(a) The US. Commissioner of Education recently observed that "[alt all levels of education, effective teaching has become increasingly contingent on well-stocked libraries... ?I
2 id. at 848. His statistics revealed that 29.6% of public school pupils and 37.2% of nonpublic school pupils attended schools that had no libraries. Id. at 849. (b) Children from
"deprived neighborhoods" attending both public and parochial schools "are losing points on
their IQ, particularly between the third and sixth grades, and by the time they get to the
eighth grade, they are apt to be 2 or 3 or 4 or 5 years behind?' 5 id. at 2540 (question by
Senator Robert F. Kennedy).
149 330 U.S. at 50.
143
14 4
CALIFORNIA LAW REVIEW
[Vol. 56:260
forbids state support for "religious training, teaching or observance." 5 0
I agree. But, "[i] f the fact alone be determinative that religious schools
are engaged in education," he could "see no possible basis, except one
of dubious legislative policy, for the state's refusal to make full appropriation for support of private, religious schools, just as is done for
public instruction."' 5 ' I disagree.
Parochial schools perform a dual function, providing some religious
education and some secular education. Government may finance the
latter,1 52 but the establishment clause forbids it to finance the former.
That government money may be used for partial support of church
schools does not mean that "it can also be used for the support of our
churches, and that we are moving toward a union of church and state
in America."' 5 3 Conceding Mr. Justice Jackson's premise that "Catholic
education is the rock on which the whole structure rests," 4 his conclusion does not follow that rendering "tax aid to its Church school is indistinguishable . . . from rendering the same aid to the Church itself."
It must be perceived that by using tax funds to support the secular
aspects of parochial education, the state expends no more than would
be required either to support parochial school pupils if they attended
existing public schools, or to establish additional public schools at
various sites for all pupils presently attending parochial schools, 15
neither of which alternatives raises colorable constitutional objection.
This point is not made to prove that either the free exercise clause or
political fairness demands government aid for parochial schools. Rather,
it demonstrates that, where the state affords public money to finance
the secular aspects of education in church-related schools, it imposes
a tax burden essentially identical with that which it could constitutionally
impose for separate secular facilities. To do so in no way violates the
historical and contemporary policy underlying the establishment clause
against infringing religious liberty through taxation for religious purposes.' 5 6
'5o Id. at 52.
'151Id. at 49-50. Justice O'Connell makes a similar contention in Dickman v. School
Dist., 232 Ore. 238, 255-56, 366 P.2d 533, 542 (1961), cert. denied, 371 U.S. 823 (1962).
152 This is considered in detail in text accompanying notes 200-80 infra.
153 A. Jonxsox & F. YosT, supra note 28, at 151.
154 Everson v. Board of Educ., 330 U.S. 1, 24 (1947) (dissenting opinion of Jackson, J.).
55
See Snapper, Contributions of Independent Education, in EnucATIoNAL FREEDOM
103, 104-05 (D. McGarry & L. Ward eds. 1966); cf. Freeman, Tax Credits and the School
Aid Deadlock, 194 CATnoEc WoRLD 201, 203 (1962).
156 Thus, Professor Sutherland could write of a proposal granting limited aid to paro'
chial education that it "would not impair any person's free exercise of religion, it would
have to be judged as a question of 'ultra vires.'" Letter to Senator Morse, in S. Doc. No. 29,
87th Cong., 1st Sess. 52, 61 (1961). See also Corley, Objection to Aid Answered, in EDU-
19681
AID TO PAROCHIAL SCHOOLS
In addition, it is possible that, by affording some state aid to nonpublic schools (but substantially less than the per capita public school
cost) , 57 a net decrease in the tax burden would result; a number of
nonpublic pupils who are now shifting to public schools for economic
reasons might cease doing so and, as is frequently predicted, many
public school children might transfer to parochial or private schools.' 58
Of course, this latter argument is not of constitutional scope, because a
net increase in tax burden should be equally constitutional if the public
aid were limited to the secular aspects of education in parochial schools.
Nor could government finance religion in the hope, or even with the assurance, that it would in some way produce a smaller overall tax burden.
Economically, the argument is appealing. Constitutionally, however, I
know of no dissent from the proposition that it would be a patent use
of religion as an engine of civil policy in violation of the establishment
clause.
B. Discrimination Among Recipient Schools
The proposal contained in this article assumes that any governmental
aid will be extended to parochial schools on a constitutionally nondiscriminatory basis. For the legislature to single out, say, Lutheran
parochial schools or their students for aid, while refusing to afford equal
privilege to other similarly situated church-related or private schools,
would be a patent violation of the establishment clause, as would giving
aid only to church-related schools while denying it to others similarly
15 9
situated. The former action would "prefer one religion over another."'
The latter would "aid all religions as against non-believers."'
This is not to say that if aid is to be extended beyond the realm of
public schools it must be afforded nondiscriminatorily to all nonpublic
schools. The statute in the Everson case itself distinguished between
nonpublic schools "operated for profit in whole or in part"'' and those
that were not, as does Title III of the Elementary and Secondary Education Act of 1965.162 Such a classification, not based on religion, should not
CATIONAI. FnEEDoM 184, 186 (D. McGarry & L. Ward eds. 1966). But see Editorial, ... And
in Maryland, Washington Post, Oct. 11, 1967, at A 16, col. 1.
157 Calculation and allocation of costs in parochial schools that may be publicly financed
is discussed in text accompanying notes 200-84 infra.
1 8
6 See McDonough, Economy of Government Aid to Independent Education: A Tax-
payers' Savings Plan, in EDUcATIoNAL
FREEDOm 122 (D. McGarry & L. Ward eds. 1966).
159 Everson v. Board of Educ., 330 U.S. 1, 15 (1947).
160 Torcaso v. Watkins, 367 U.S. 488, 495 (1961). See also Tarshis v. New York, 24
App. Div. 2d 644, 262 N.Y.S.2d 538 (1965). But cf. Packer Collegiate Institute v. University
of State of N.Y., 273 App. Div. 203, 208-09, 76 N.Y.S.2d 499, 505 (1948).
161330 U.S. 1, 3 n.1 (1947).
162 20 US.C. §§ 841, 843(b) (5) (Supp. I, 1965).
CALIFORNIA LAW REVIEW
[Vol. 56:260
violate the establishment clause. 168 Nor, despite suggestions to the contrary, 164 should such an economic differentiation be held to contravene
the equal protection clause of the fourteenth amendment. 6 5 Perhaps
wealth is "a capricious or irrelevant factor" to measure a voter's qualifications166 or to determine certain rights of those accused of crime. 16 7 But
surely it is not such a factor for the purpose of distribution of public
largesse. It has been suggested that equal protection forbids discrimination both for and against Negroes, 68 but never seriously that it makes
poverty an equally neutral factor.'69
It is true that this profit-nonprofit classification turns on the character
of the school, which is the immediate recipient of the aid, rather than on
the particular needs of each child in attendance, and that some needy
students will be enrolled in schools operated for profit while some affluent
children will be registered in nonprofit institutions. 7 0 Although a more
perfect system might look to the individual child rather than base its
judgment on the assumption that nonprofit schools educate more needy
children,' 7 ' this would be much more difficult to administer. 2 In the
context of an essentially economic classification, 173 equal protection "is
offended only if the classification rests on grounds wholly irrelevant to
the achievement of the State's objective."'1 74 "It is by ... practical con163 See Kurland, supra note 19, at 70. Contra, Stout, The Establishment of Religion
Under the Constitution, 37 Ky. L.J. 220, 231-32 (1949). However, if the amount of aid
given to a parochial school within this classification exceeds the value of the secular educa-
tional service it renders, the establishment clause would be violated under the terms of the
proposal advanced in this article.
164
See Comment, The School Bus Law: Transportationof Parochialand PrivateSchool
Pupils in Pennsylvania, 27 U. Pur-. L. Rv. 71, 79 (1965). The statute in Everson was not
attacked on this ground, but the Court indicated that such a challenge might not be wholly
frivolous, 330 U.S. at 4 n.4, 4-5; see Comment, Constitutional Law-Establishment of
Religion, Due Process, and Equal Protection-PublicAid to ParochialSchools, 45 Mcr. L.
REv. 1001, 1014 (1947).
165 Or, in the case of a federal statute, the due process clause of the fifth amendment.
See Bolling v. Sharpe, 347 U.S. 497 (1954).
166 Harper v. Virginia Bd. of Elections, 383 US. 663, 668 (1966).
67
. See Douglas v. California, 372 U.S. 353 (1963) ; Griffin v. Illinois, 351 U.S. 12 (1956).
168 See Kaplan, Segregation Litigation and the Schools-Part 1: The General Northern
Problem,
58 Nw. U.L. REv. 157 (1963).
169 But cf. Edwards v. California, 314 U.S. 160, 184-85 (1941) (concurring opinion of
Jackson, J.).
170 See Everson v. Board of Educ., 330 U.S. 1, 20-21 (1947) (dissenting opinion of
Jackson, J.); id. at 62 n-58 (dissenting opinion of Rutledge, J.); Allen & Marshall, "Child
Benefit" Has Lost Its Glitter, 44 Pni DELTA KAPPAN 77, 78 (1962).
171
See 5 Hearings on S. 370, supra note 148, at 2895 (Statement of Lawrence Speiser,
Director, ACLU).
172
See T. PowELL, Ta ScHooL Bus LAW 75 (1960).
173But cf. Horowitz, Unseparate but Unequal-The Emerging Fourteenth Amendment
Issue in Public School Education, 13 U.C.L.A.L. Rav. 1147 (1966).
174
McGowan v. Maryland, 366 U.S. 420, 425 (1961).
1968]
AID TO PAROCHIAL SCHOOLS
siderations based on experience rather than by theoretical inconsistencies
71
that the question of equal protection is to be answered."'
Statutes constitutionally neutral on their face, however, may be
invalid in effect.'7 6 Under a proper statutory definition, for example, the
only "nonprofit" school in town may be a parochial school. Absent a
judicial finding that the legitimate statutory definition merely camouflaged an illegitimate preference of religion violating the establishment
clause, 17 7 the statute should not be held invalid. A public appropriation
for a primary secular purpose should not be void merely because, under
an appropriate neutral standard, a religiously controlled institution
78
happens to be the only recipient.
A more difficult issue, but one apparently of no great consequence,
arises where an aid statute by its terms names the parochial schools of
one church only, or names only parochial schools, and it is unknown from
the statute or its available legislative history whether other similarly
situated schools exist. 7 9 The Court could: (a) strike down the statute,
thus forcing the legislature to redraft properly if it can; 18 0 (b) strike
down the statute, unless it were shown that there were no others similarly
situated; 181 (c) uphold the statute, unless it were shown that there were
others similarly situated. 8 '
C. The Compensable Amount
The constitutional principle proposed herein speaks of the secular
educational services rendered by the church-affiliated school. Assuming
that these services may be isolated, 3' little difficulty arises where their
cost is the same to the parochial school as to the public school system.
Because government may properly finance the secular education of all
175 Railway Express Agency v. New York, 336 U.S. 106, 110 (1949). See Rhoades v.
School Dist., 424 Pa. 202, 225, 226 A.2d 53, 66, appeal dismissed per curiam, 389 U.S. 11
(1967).
17 6
See Lane v. Wilson, 307 U.S. 268 (1939).
177Herein, the question of " motive." See text at notes 114-24 supra; W. LoCEEART,
Y. KAm.SAR & J. CHoPER, CONSTrTuiONAL LAW 1209 (2d ed. 1967). For an example, see
State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 158, 115 N.W.2d 761, 766 (1962).
178 See Kintzele v. City of St. Louis, 347 S.W.2d 695 (Mo. 1961) (redevelopment authority gave benefit to university, within relevant geographic area, which happened to be
religiously affiliated). See also 79 CHusn.a, CwxnTmy 1057 (1962) (editorial); 78 id. at
1135 (1961) (editorial).
1 79
This was in fact the situation in Everson. The township resolution authorized reimbursement only for parents of public and Catholic schools pupils. 330 U.S. at 4 n.2.
1 80
See id. at 21 (dissenting opinion of Jackson, J.) ; cf. McLeod v. J.E. Dilworth Co.,
322 U.S. 327 (1944).
181 Everson v. Board of Educ., 330 U.S. 1, 62-63 n.61 (1947) (dissenting opinion of
Rutledge, J.).
182 This is the action the Everson Court took. Id. at 4 n.2.
183 For discussion of this issue, see text accompanying notes 200-284 infra.
CALIFORNIA LAW REVIEW
[Vol. 56:260
children, whatever their religious faith, payment to a parochial school
under these circumstances of the same amount that such education
costs in the public schools should be immune from establishment clause
protest: No tax funds are being expended for strictly religious purposes;
no more tax funds are being used than would be if the pupils were in
public schools;' 84 the church obtains no financial benefit except compensation for the cost of secular services rendered. 185 A fortiori, there is no
difficulty if the cost of providing this service in the parochial school is
less than it is in the public school system, as is not unlikely, and government pays the parochial school only this lesser amount.
But suppose that the cost of providing secular educational services
in the parochial school is less than is the cost in the public school system
and government pays the parochial school the latter amount.1 80 Although
here also no more tax funds are being expended than would be if the
pupils were in public schools, the church obtains a net financial benefit.
Nevertheless, this should not violate the establishment clause. Literally
thousands of church-related agencies offer secular services that are
funded-or purchased, if you will-by government.187 If any organization-profit or nonprofit, religious or nonsectarian-provides a secular
service to government at the "going rate," and is able to profit thereby
because of low labor costs, efficiency, or any other reason, the Constitution should not be held to prohibit it.' 88 In fact, for government to refuse
184 Cf. Cook County v. Chicago Indus. School for Girls, 125 Ill. 540, 569-71, 18 N.E.
(1888).
183, 1196-97
85
See Schade v. Allegheny County Institution Dist., 386 Pa. 507, 512, 126 A.2d 911,
914 (1956); Cushman, Public Support of Religious Education in American Constitutional
Law, 45 Irz. L. Rav. 333, 336 (1950). It may not be denied that the public financing may
permit the church now to use funds formerly spent for secular educational purposes for
strictly religious purposes. This "freed funds" issue, whose effect is irrelevant to the rationale
proposed herein and is produced by every concededly valid direct or indirect public aid to
religiously-affiliated institutions, is further considered at text accompanying notes 407-15
infra. Neither may it be denied that, as a result of this governmental action, the church will
be significantly aided in a nonfinancial way, for gaining attendants at parochial schools "is
a powerful instrumentality in the successful prosecution of the work of [many churches]."
Bennett v. City of La Grange, 153 Ga. 428, 437, 112 S.E. 482, 486-87 (1922). But, since the
government's action has a primary secular effect, the equally present benefit to religion
should not invalidate it. See text following note 111 supra.
186 Cf. 2 U.S.C. § 88a(c) (1964), providing that congressional pages may "attend a
private or parochial school of their own choice" and that "such . . . school shall be reimbursed" by Congress "in the same amount as would be paid if the page or pages were
attending a public school."
287 See R. DamAx, supra note 50, at 27. See also Hammett, supra note 106, at 936,
188 Thus, a religiously-affiliated institution may be the successful bidder in a redevelopment project, satisfying a valid public purpose, and this should not violate the establishment
clause because the institution thereby acquired valuable property at a lower price than it
would have had to pay by negotiation with the private owners, who got full value for the
property from the public redevelopment authorit. See El.i v. City f Grand Rapids, 257
1968]
AID TO PAROCHIAL SCHOOLS
to deal on equal terms with an organization providing public services because that organization is religiously-affiliated might even be seen as a
violation of the free exercise clause.
It must be recalled that government assistance to religion which
neither infringes religious liberty nor expends tax funds for strictly religious purposes should not be considered violative of the establishment
bar.""" Thus, in the context of the immediate discussion, it is the "cost" to
the public and not the "aid" to religion that is determinative.' As long
as the government receives in full the secular services purchased, the
relative cost or profit to religion of supplying those services should have
no relevance to the establishment clause. Its prohibition should be satisfied by a showing that the government is getting the secular services it
paid for. Consequently, where something costs the government little or
nothing, it should make no difference what secular services it receives.
For example, the government may allow religious organizations temporarily to use vacant public buildings for strictly religious purposes. Such
occasional use of public buildings may substantially "aid" religious
groups, and it may save them significant rental fees. But, if the use is
not "regular and extended in duration,"1 91 the "cost" to the public is
9 3 It
nil or de minimis, 19 2 and there should be no establishment breach.
may be argued that, even though the use of the building cost the state
nothing, it could charge these religious organizations measurable rental
fees. But the establishment clause should not require that government
profit at religion's expense. It should merely forbid public expenditures
for strictly religious purposes.
Therefore, if the government lends money at a rate of interest equal
to or above the government borrowing rate but below the commercial
F. Supp. 564, 569-70 (W.D. Mich. 1966); 64th St. Residences, Inc. v. City of New York,
4 N.Y.2d 265, 150 N.E.2d 396, 174 N.Y.S.2d 1 (1998). See also Adams v. County Comm'rs,
180 Md. 550, 26 A.2d 377, 380 (1942).
189 See text accompanying notes 43-50, 79-80 supra.
190 But cf. McVey v. Hawkins, 364 Mo. 44, 54, 258 S.W.2d 927, 932-33 (1953).
191L. PrE msR,supra note 26, at 207.
2
19 See note 53 supra. But cf. Engel v. Vitale, 370 U.S. 421, 441 (1962) (concurring
opinion of Douglas, J.).
193 See Southside Estates Baptist Church v. Board of Trustees, 115 So. 2d 697 (Fla.
1959) ; Nichols v. School Directors, 93 Ill. 61, 34 Am. Rep. 160 (1879) ; State ex tel. Gilbert
v. Dilley, 95 Neb. 527, 145 N.W. 999 (1914); People ex tel. Lewis v. Graves, 219 App. Div.
233, 236, 219 N.Y.S. 189, 192 (1927).
Similarly, if public funds were used to construct a research laboratory on the campus
of a church-affiliated university, and the building were used for this purpose to the extent
contemplated and demanded by the research project, the full secular purpose that the state
bargained for will have been achieved. This being so, even a regular use of these facilities
(say, on evenings or weekends) by the school for religious purposes should be valid. But see
K.ratz, Research and Service Programs and Public Funds in the Church-Related School, 7
J. CHURCH & ST. 207, 211-12 (1965).
CALIFORNIA LAW REVIEW
[Vol. 56:260
rate, it may so lend to sectarian groups, even though they use the money
for strictly religious purposes. The church benefits, but at no cost to the
state. This should not be confused with government loans for secular
purposes.19 4 Since, as to these, grants would be unobjectionable, loans
at any rate are obviously valid.19 5 It follows that a state may buy textbooks--even religious ones-at quantity prices and sell them to parochial
schools at the discounted price.
Finally, suppose that the cost of providing secular educational services
in the parochial school exceeds the cost in the public school system 0 0
and government pays the parochial school the former amount. Although
the church here does not obtain funds that may be used for strictly religious purposes, more tax funds are being expended than would be if
the children were in public schools. There should, nonetheless, be no
violation of the establishment clause.197 So long as the state expenditure
is in fact for a primary secular goal, 0 8 no tax funds are being used for
strictly religious purposes.0 9
194
See Hayes, supra note 10, at 174. See also provisions of the Housing Act of 1950,
64 Stat. 77, 12 U.S.C. § 1749 (1964); the National Defense Education Act of 1958, 20 U.S.C.
§§ 421-29 (1964).
195The National Defense Education Act of 1958, 20 U.S.C. § 445(b)(3) (1964) sets
the interest rate for loans to nonprofit private schools at one fourth of 1% above the
average government borrowing rate.
1
9O This might result because the marginal additional cost of adding even all the parochial students to the public schools could well be less than the cost of duplicative facilities
in the parochial school. Or the per capita cost of transportation for parochial school students
might be higher. See Hearings on H.R. 13160 and H.R. 13161 Before the General Subconm.
on Education of the House Comm. on Education and Labor, 89th Cong., 2d Sess., at 56
(1966).
197 Contra, 5 Hearings on S. 370, supra note 148, at 2896 (statement of Lawrence
Speiser,
Director, ACLU).
198
In fact, an additional secular purpose might be advanced in that, even though there
may be duplicative facilities, there is an educational advantage in smaller classes and
diversified and experimental techniques and programs-although the diversified style may not
be such as to produce religious rather than secular education, see text accompanying notes
200-80 infra-see Snapper, supra note 155, at 106-07.
199
See text accompanying note 155 supra.
The entire discussion assumes that the total funds provided by all levels of governmentfederal, state, and local-including the value of tax exemptions (and such benefits as preferential mailing rates, see Wedlew, Church and State: How Much Separation?, 10 DE PAUL L.
REv. 1, 23-24 (1960)) given parochial school property and activity, will not exceed the cost
of the secular educational services rendered by the church-affiliated school. The general topic
of tax exemptions for church property and religious activities is beyond the scope of this
discussion. But brief reference to certain aspects of the problem may be helpful.
There appears to be no analytically meaningful way to distinguish a tax exemption from
a direct subsidy. Exemptions afford financial benefits and increase the tax burden of others.
Murray v. Comptroller of Treasury, 241 Md. 399, 216 A.2d 897, 906, cert. denied, 385 U.S.
816 (1966). But see Snyder v. Town of Newtown, 147 Conn. 397, 161 A.2d 770, 781 (1960)
(dissenting opinion) (1960), appeal dismissed, 365 U.S. 299 (1961) ; cf. Everson v. Board of
Educ., 330 U.S. 1, 61 n.57 (1947) (dissenting opinion of Rutledge, J.). Unlike the sporadic
19681
AID TO PAROCHIAL SCHOOLS
D. The Permeation Issue
1. The Facts
Probably the most complex matter concerning public financial assistance to parochial education is the permeation (or integration) issue.
It is frequently contended that "official Catholic doctrine refuses to
recognize any distinction between secular and religious teaching."2 00 Pope
church use of public buildings, see text accompanying notes 189-93 supra, tax exemption
thus clearly results in out-of-pocket cost to taxpayers. It may be true that by tax exemption
"the state merely refrains from diverting to its own uses income independently generated
by the churches through voluntary contributions." Giannella, Religious Liberty, Nonestablishment and DoctrinalDevelopment-Part 11. The Nonestablishment Principle, 81 HAxv. L.
REV. 513, 553 (1968). But, by augmenting the assessment on others, tax exemption effectively
"forcibly diverts the income of both believers and nonbelievers to churches." Id. Thus, in
reference to governmental financial assistance to parochial education, tax exemptions must
be computed with other funds provided. But cf. Lundberg v. County of Alameda, 46 Cal. 2d
644, 298 P.2d 1, appeal dismissed sub nom. Heisy v. County of Alameda, 352 U.S. 921 (1956).
It has been said that, "No entirely satisfactory rationale for tax exemption has ever
been stated in any American judicial decision," R. DxmtAN, supra note 50, at 9, and its
constitutionality has been seriously questioned. Korbel, Do the Federal Income Tax Laws
Involve an "Establishment of Religion"?, 53 A.B.AJ. 1018 (1967). But see General Finance
Corp. v. Archetto, 93 R.I 392, 176 A.2d 73 (1961), appeal dismissed, 369 U.S. 423 (1962).
There is some indication that, at least in some forms, the Court considers it required by the
free exercise clause. See Follett v. McCormick, 321 U.S. 573 (1944); Murdock v. Pennsylvania, 319 U.S. 105 (1943). When afforded to church or synagogue buildings themselves,
perhaps it is justified as "compensation" for the public welfare (purely secular) services
performed by these religious organizations. See Murray v. Comptroller of Treasury, 241 Md.
383, 401-02, 216 A.2d 897, 907-08, cert. denied, 385 U.S. 816 (1966); Kauper, supra note 84,
at 97, 108, 112-13. For an excellent general discussion, see Kauper, supra note 84; see also
Note, 61 Nw. UL. REv. 777, 787-93 (1966).
Professor Van Astyne has introduced an extremely provocative and penetrating consideration, which logically goes not only to justification of "tax accommodations [for religion] which currently exist in many state and federal laws," Van Alstyne, supra note 68,
at 882, but is relevant also to the entire question of expenditure of public funds in aid of
religion. He observes that "as more of the economy and environment is occupied by the
increasing public, governmental sector of our society, the net effect of the shift is to confine
religion to the ever shrinking domain of the relatively diminishing private sector," and that
"to the extent that the tax revenues thus collected may not be spent by government to support religious enterprises, but must be used exclusively for secular purposes, the net effect,
arguably, is to reduce the relative supply of funds available to religion." Id. at 881.
Professor Giannella amplifies this point in advancing, as central to his thesis, that "the
no-aid aspects of the separation principle should be relaxed in direct proportion to the extent
of governmental regulation." Giannella, supra at 522. See generally id. at 522-26, 537-55.
The rationale is indeed an intriguing one and unquestionably merits further exploration.
But, like others, "Once loosed, the idea ... is not easily cabined." Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARv. L. Rav. 91 (1966).
Apart from judicial limitations that are essentially intuitive and involve "large and imponderable factors," Giannella, supra at 527, it would suggest that government literally may
finance many strictly sectarian efforts of organized religion. It is seemingly a thesis demanding extensive, if not total, reevaluation of the broadly conceived establishment clause
goals in light of changed and changing circumstances.
200 Konvitz, Separation of Church and State: The First Freedom, 14 LAw & CoNTEMP.
CALIFORNIA LAW REVIEW
[Vol. 56:260
Pius XI and Pope Leo XIII are quoted as ordering "that every . . .
subject taught, be permeated with Christian piety, ' 20 1 as are Catholic
educators, theologians and philosophers. 2 A Lutheran school manual
demands "that all areas of the curriculum reflect an adequate philosophy
of Christian education. 20 3 Seventh Day Adventists declare their "endeavor to permeate all branches of learning with a spiritual outlook."2 4
After all, it is asked, "if religion is taught only one or two hours a day in
is the point of maintaining the separate parochial
church schools, what
20 5
system?
school
But there is less than universal agreement as to the facts. Others
familiar with Catholic-and Jewish 2°---parochial school education explain that the pupil there "learns essentially the same arithmetic, spelling,
English, history, civics, foreign languages, geography, and science" as is
taught in the public schools, but in addition learns religion "and the religious dimensions of secular knowledge."210 In the Lutheran school sysPROB. 44, 58 (1949). See also Konvitz, Whittling Away Religious Freedom, COMMENTARY,
June 1946, at 4, 6-7.
201
Konvitz, Separation of Church and State: The First Freedom, 14 LAW & CONETMI.
PROB. 44, 58 (1949). See also Drinan, Should the State Aid Private Schools?, 37 CONN. B.J.
361, 366 (1963); Hayes, Law and the Parochial School: A Formulation of Conflicting
Positions, 3 CATHoLIc LAW. 99, 100 (1957); Slough & McAnany, supra note 37, at 61-62.
20 2
See A. SToxEs & L. PrErxn, supra note 27, at 444; Pfeffer, Religion, Education
and the Constitution, 8 LAW. GUnLD REv. 387, 396 (1948); Hearings on H.R. 6074 Before
the Ad Hoc Subcomm. on Study of Shared-Time Education of the House Comm. on
Education and Labor, 88th Cong., 2d Sess., at 55 (1964).
203 Quoted in G. LANouE, supra note 56, at 31.
2
04 Id.
2
05 Id. See also Gordis, Education for a Nation of Nations, in Religion and the Schools,
supra note 37, at 5, 23.
206See paper by Dr. Nichols, summarized in Religion and Freedom 22 (Report by
D. McDonald on a Seminar sponsored by the Fund for the Republic, New York, N.Y.,
May 5-9, 1958); Gilbert, Symposium: Shared Time, 57 RELIGious Enuc. 14, 15 (1962).
But see Brickman, id. at 20, 21, who says that some Jewish parochial school leaders would
object to their students taking courses in literature, science, and social studies outside of the
Hebrew day school because they "should not be exposed in secular courses to any heterodox
or heretical ideas or doctrines."
207National Catholic Welfare Conference, supra note 37, at 408. See also McCluskey,
A Changing Pattern, in FEDERAL Am AND CATnOLIC ScHooLs 31, 39-40 (D. Callahan ed.
1964); Copass, Church Schools Have No Claim on Public Funds, NATmON'S ScHooLs, Aug.
1945, at 29; Coughlan, Religion and the Schools, LIFE, June 16, 1961, at 110, 122; D'Amour,
Tempest in a Textbook, 107 A.ERICA 443 (1962); Hayes, supra note 10, at 176; Kauper,
supra note 35, at 36; Williams, Should the Federal Government Aid ParochialSchools, 111
FoRUM 100 (1949). The following statement illustrates the point well: "The Christian
teacher of the law, therefore, should know the positive legal fact, but he must also have
some concern for the law as an expression of justice. The Christian biologist must know
the facts of evolution, but he must also be aware of theological discussion of human
creation. The Christian physicist must know his nuclear science, but he must be aware that
its applications have had a social and ultimately moral impact on the whole world."
Fidelian, Christian Schools, Secular Subjects, 81 CoMMoNWEA 566, 568 (1965).
1968]
AID TO PAROCHIAL SCHOOLS
tern, it is said that "the main features of the public school curriculum are
reproduced. 12
8
1
In response to a study showing that many "secular
course" textbooks used in parochial schools are permeated with religious
symbols, concepts, and doctrines,2 11 it has been said that the examples
"were highly arbitrary and not representative," and that "Catholic educators ... as a whole, do not favor textbooks in which dabs of spurious
religion serve only to distort the essential subject matter ... *21o
Further evidence that secular subjects in parochial schools need be
little different than their counterpart public school offerings is found in
the fact that, as part of shared time programs, many parochial school
students actually take such courses as mathematics, physics, science,
foreign languages, music, industrial arts, home economics, and physical
education in the public school itself.2 11 Catholic educators have observed
that "basic instruction" in such courses as literature and history could
well be undertaken in shared time programs in the public schools "with
the church adding the distinctive note which it can bear to the revelation
A teacher's manual for a mathematics text prepared for use in Catholic schools begins
by pointing out that "the authors . . . have recognized that first and foremost, an arithmetic program for Catholic schools must be mathematically sound. Over and above this,
they have recognized that . . . these situations present opportunities for the exercise of
Christian virtues." LaNoue, Religious Schools and "Secular" Subjects, 32 HAIv. EDUC. REv.
255, 274 (1962).
2
08A. SToxs & L. PrEa'xa, supra note 27, at 419. Lutheran teachers are instructed to
"'constantly search for materials that can be correlated with basic texts,"' LaNoue, supra
note 207, at 281, thus implying that religious values are added to basic secular instruction.
200 See discussion accompanying note 207 supra and notes 252-278 infra.
210 Ball, Federal Aid-1964, 61 NAT'L CATHoLIC EDuc. Ass'N BurL. 228, 229 (1964).
See also Gallagher, Observations Arising from the Horace Mann Case, 63 NATL CATHoLIC
EDUC. Ass'N BuLL. 232, 236 (1966): "A flat judgment concerning the morality or sinfulness
of a particular practice simply has no place in the history classroom or the science laboratory." Downey, Suppose ParochialSchools Receive FederalAid . .. ., CATHoLIC ScHiooL J.,
March 1967, at 44, takes the position that parochial schools, "in developing explanations
of the life of Christ . . . [should not] step over into anti-Semitism," nor should they in
treating "doctrinal differences among Christians, [step] into attack upon the sincerity of
Protestants as persons?' Id. at 50. Further, he points out that the "pursuit of secular learning
should be considered hallowed in itself both because of its origin in the Divine Intellect and
because it is imparted in a setting sponsored by the teaching Church. Well-meaning attempts
at introducing additional devotion and piety into geography, arithmetic, etc.' are unnecessary, id. at 51. For a similar attitude of Christian Reformed parochial school education, see
LaNoue, supra note 207, at 284.
The recent testimony of supervising administrators of the Catholic school systems in
Chicago and Pittsburgh was that a large percentage of the textbooks used in their elementary
and secondary schools was also widely used in the public schools. 2 Hearings on H.R. 2361,
supra note 35, at 809, 810.
211 Hearings on H.R. 6074, supra note 202, at 55, 263. In a recent Chicago shared
time plan, all courses except English, social studies, music and art were taken in the public
school. See Morton v. Board of Educ., 69 III. App. 2d 38, 216 N.E.2d 305 (1966).
CALIFORNIA LAW REVIEW
[Vol. 96:260
of God in these areas" in the parochial school.2 12 Thus, it is concluded,
the reason for maintaining a separate parochial school system is not for
the purpose of teaching a wholly different curriculum. Rather, it is to
add "the most important of the four R's,"2 13 the feeling being that children attending public schools that taught only secular subjects five days
a week would consider religious training unimportant, and that this impression could not be overcome by a few after school hours or Sunday
school.
214
Several facts emerge clearly from the foregoing discussion. First,
"permeation" is a word of varied and imprecise meaning. Father Drinan
can state as "the undeniable fact that secular instruction in a Catholic
school is 'permeated' by a Catholic atmosphere and Catholic attitudes," 15
yet urge that "permeation should avoid every suggestion of quasi-coercion
or 'indoctrination.' 2l6 Second, the secular courses taught in parochial
schools rarely, if ever, mirror exactly the courses taught in the public
schools. Third, although "no scientific study has ever been done on the
extent of the permeation of sectarian teaching in the instruction in secular subjects in Catholic schools,"21 it is likely that some secular subject
courses in some parochial schools are so "permeated" that they are in
reality courses of sectarian indoctrination,21 despite the regulatory power
212 Smith, Symposium, supra note 206, at 10, 11. See also Geoghegan, id. at 24, 25.
213 2 Hearings on S. 181 and S. 717 Before the Senate Comm. on Education and Labor,
79th Cong., 1st Sess., at 651 (1945) (testimony of Edward S. Heifron, Executive Secretary,
National Council of Catholic Men).
214
See Mitchell, Religion and Federal Aid to Education, 14 LAw & CoNTEZM.
PRou.
113, 132-33 (1949).
215 R. DRIwAN, supra note 50, at 229.
216Drinan, The Challenge to Catholic Educators in the Maryland College Case,
NAT'L CATHOLIC EDUC. ASS'N BurL., May 1967, at 3, 7. The following interesting definition
of the term's objectives reveals its latent ambiguity: "We want religion to permeate the
curriculum of our schools, so that our children may have the opportunity to learn how to
construct for themselves a world view that is rationally theistic, in contrast to the shattering
dichotomy between religion and science, between ethics and business or politics, between
the supernatural and the natural, that characterizes the world view of so large a part of
society today." Hanlon, FederalAid?, 110 AmEaRICA 418 (1964). That the federal government
does not regard "permeated" parochial education as intrinsically a religious activity is
evidenced by the fact that tuition contributions to its support are not deductible for income
tax purposes as religious contributions. See G. LANoUE, supra note 56, at 43.
217 Drinan, The Constitutionality of Public Aid to Parochial Schools, in TAE WALL
BETwEEx CHUerC AND STATE 55, 64 (D. Oaks ed. 1963).
218
An article by Sister Carolyn, Lay Teachers Have a Spiritual Role, CATHOLIC Sciroor
J., Jan. 1963, at 43, 44, urges that secular course instructors "so teach that the Christian
principles become guiding principles. .. . Convinced that Christian principles must be the
motivation for acts, you teach differently from a textbook teacher. Your teaching is structured upon principles, the truths of a Christian life. By a gradual buildup of understandings
which shape into a generalization, you lead the child to discover truth rather than impose
or patch on him a fact of information ....
All of our units of study are directed to form
a person who thinks, judges, and acts like Christ."
1968]
AID TO PAROCHIAL SCHOOLS
of the state-whether exercised or not;2 19 that some courses are completely, bona fide secular;2 20 that some courses fall between these extremes. Fourth, the problem of the parochial school secular courses being
turned into nothing more than religious instruction is not inherent; no
religion demands it, nor constitutionally could a religion demand it if
22 1
contrary to reasonable state requirements.
2. Extent of Permissible Aid
Under the rationale proposed in this article, public financial assistance
to parochial education may not exceed the value of the secular educational service rendered. One relatively effortless way of avoiding the
whole problem of permeation in this connection is simply to ignore it
by taking the position that "the secular character of secular subjects is
not changed by a moral or religious permeation"; "that it is impossible to
study and interpret man and his activities apart from his moral and religious values"; and that "the National Merit Scholarship competition
• . . is clear evidence that students who attend church-related schools
receive a secular education as good as that received by students in our
public schools." 222 On this reasoning, there would be no prohibition to
financing accredited parochial schools on a lump-sum parity with public
223
schools without further investigation.
219 See A. SToMas & L. PrE m, supra note 27, at 413 But see Hayes, supra note 10,
at 175 n.33; Kenealy, Equal Justice Under Law-Aid to Education, 11 LoYoLA L. REV. 183,
198 (1962-63). For discussion of the exercise of state regulatory power over nonpublic
schools, see text accompanying notes 472-89 infra.
22
0An article by Sister Alice, Modern Art in the Religious Class, CATHOLiC SC HoL J.,
Jan. 1963, at 46, 48, recommends that "regardless of our feelings toward modem art, we
will not impose our likes, dislikes, and prejudices upon our students." An article by Sister
Paulinus, Bacteriology in the High School, id. at 49, gives a fully objective account of the
technical problems of studying the subject. For similarly written instructional essays by
Catholic educators, quite divorced from religious influences, see O'Neill, The Homeroom in
the Guidance Program, id. at 60; Sister Ruth, Budding Poets, id. at 67; Phillips, Written
Recitation in Teaching Science, id. at 68; Sister Christina Marie, Geometric Forms Taught
in First Grade, id., Feb. 1963, at 46; Sister Marion Beiter, Teacher Training for Secondary
Mathematics, id. at 50; Sister Marie Joseph, How We Teach Russian, id. at 51; Sister M.
Martin, Freshmen Really Read, id. at 54.
221 See discussion in text accompanying notes 477-89 infra. See also Drinan, Does State
Aid to Church-Related Colleges Constitute an Establishment of Religion?-Reflections on
the Maryland College Cases, 1967 UTAH L. Rv. 491, 494, 505; Manning, Aid to EducationFederalFashion, 29 FoRn=i L. Rzv. 495, 523-24 (1961).
222
Blum, supra note 37, at 153. See also id. at 140; 2 Hearings, on HR. 2361, supra
note 35, at 819-20 (testimony of Msgr. Frederick G. Hochwalt).
223 Until recently, there has been no comprehensive published study comparing the
academic and other achievements of parochial school students to those of public school
students. See Jencks, Catholics and Our Schools, Naw REP LIc, Mar. 19, 1962, at 21, 22.
Such a major sociological study, comparing Catholic school Catholics and public school
Catholics, entitled THE EDUCA'nox op CATHOIC Ax aEcAxs, by Andrew M. Greeley, a
CALIFORNIA LAW REVIEW
[Vol. 56:260
But this may be too simple. Competitive examinations and sociological
studies are not so exact as to determine conclusively that the educational
services rendered in parochial schools are as complete and effective and
have the same impact from a nonreligious perspective on the overall
development of the student as does public school education. Viewed from
the basis of per-hour input, it is reasonable to assume that this is not
the case, given the parochial school time spent on religious instruction.
And it is clear that the state may not subsidize religious instruction or
indoctrination, no matter where undertaken.
The establishment clause prohibition against using tax funds for
strictly religious purposes appears to require a more careful scrutiny to
Catholic priest, and Peter H. Rossi, a Protestant, was published in 1966 under the auspices
of the National Opinion Research Center.
The monograph lends support to the contention just discussed in text accompanying
note 222 supra. Among the controlled findings were that Catholic school Catholics increased
their social class margin over other Catholics, id. at 57; that those who went to Catholic
primary schools were more likely to graduate from high school than other Catholics and
were just about as likely to do so as public school Protestants, id. at 49-50; that those who
went to Catholic high schools were more likely to go to college than Catholics and almost
all classes of Protestants who went to public high schools, id. at 50; that Catholic school
Catholics scored significantly higher on a brief general knowledge test than did public
school Catholics, id. at 120; that Catholic school Catholics ranked measurably higher on an
occupational-prestige index than did public school Catholics, id. at 140. The authors conclude
that "there is no evidence that Catholic education interferes with occupational or educational
achievement." Id. at 146. Relevant thereto is the judgment of Catholic high school Catholics
indicating that their schools are no more "repressive" or "authoritarian" than other schools.
"There are no significant differences in the proportions saying they are free to disagree in
class, that all students are treated equally, or that they are free to talk to the teacher if
they think they have been treated unfairly. Indeed, in two of the three instances, the slight
associations that do exist suggest that Catholic schools may be somewhat more liberal in
these matters." Id. at 193.
The survey also revealed interesting results as to attitudes. It found no evidence that
Catholic school Catholics were less tolerant of members of other groups, id. at 122; were
less likely to defend civil liberties, were more given to extremist religious attitudes or to
distrusting world and worldly effort, or were more rigid in their child-rearing practices, id.
at 125; that, while Catholic school Catholics do interact less with other Americans while
in school, this does not continue in later life, id. at 121. Other studies have shown that
differences between Catholic and non-Catholic schooling, in respect to such matters as
participation in the community, values concerning occupational achievement, or the political
ScirooLs: A Sociogoals of American society, are nonexistent. See J. FicjiTE, PARocan
LOGICAL SnY 116 (1958); Rossi & Rossi, Some Effects of Parochial School Education in
America, 90 DAXALus 300 (1961); Rossi & Rossi, Background and Consequences of Parochial
School Education, 27 HEav. EDuc. RFv. 195 (1957). See also A. Ga=mLL & P. Rossi, TEE
EDUCATION or CATHOLIC A. EiCANS
8-9 (1966).
Finally, it must be observed that the Catholic school education did produce religious
consequences. Catholic school Catholics were more likely to engage in sacramental activity,
id. at 56-57, 71, were more "loyal" to the ecclesiastical system, id. at 60, were better informed
on the "fine points" of religious knowledge, id. at 61, and were more orthodox in their
Am
moral beliefs, id. at 63. See also Kelley, Protestants and ParochialSchools, in FFDMxtoA
AM CATHOLIC ScHooLs 71, 77 (D. Callahan ed. 1964).
1968]
AID TO PAROCHIAL SCHOOLS
assure that only the secular aspects of parochial school education will
be publicly financed.22 But to admit "an admixture of religious with
secular teaching '2 25 is the beginning, not the end, of the inquiry. To
concede that "commingling the religious with the secular teaching does
not divest the whole [course or activity] of its religious permeation and
emphasis," 221 is not to conclude that no part of the course or activity may
be aided with public money.
A secular subject parochial school course or activity may concurrently
serve independent, dual purposes-that is, full secular value may be obtained for the time and resources expended, and religious interests may
also be served. If such is the case, the entire course or activity serves a
primary secular purpose-and may therefore be fully financed-the aid to
religion notwithstanding 27 On the other hand, a secular subject parochial
school course or activity may partially serve both religious and secular
ends. Here, an allocation must be made; only the secular product may be
publicly financed 2 Of course, if a "secular subject" parochial school
course or activity is in reality religious instruction, it cannot be publicly
funded at all; and if it is exclusively secular in purpose, it may be totally
funded.
(a) The Relevance of "Atmosphere."--Before applying this approach,
certain other matters should be considered. That the general atmosphere
of parochial schools-as created by religious symbols, teachers in religious attire, and compulsory religious exercises and courses-is oriented
toward religious goals 229 should not affect the constitutional judgment
224 It is not an adequate response to say that, since classroom religious neutrality is
impossible in interpreting any subject matter, a secularist religion is being taught in the
public schools; therefore, the fact that a religious orientation is given a parochial school
subject should not disqualify it from full public support. See Blum, Freedom and Equality,
in FEDEAL Am AND CATHOLiC Sciroors 43, 45-47 (D. Callahan ed. 1964) ; cf. note 59 supra
(last paragraph). Perhaps public schools should avoid any indoctrination in ultimate values,
see Kauper, supra note 18, at 23; but if a public school teacher illustrates points by calling
on universally accepted moral values, derived from classically neutral nonreligious sources,
this is not religious indoctrination in the accepted sense. See Choper, supra note 4, at 377-79.
That a publicly accepted and espoused behavioral standard is adopted by a religious group
(say, the Secular Humanists) as its own moral or ideological tenet, does not make it a
"religious" tenet for all purposes. Cf. McGowan v. Maryland, 366 U.S. 420, 442, 445 (1961);
School Dist. v. Schempp, 374 U.S. 203, 225 (1963). See generally Giannella, supra note 199,
at 562-63; Note, 61 Nw. U.L. Rzv. 705 (1966). See also note 59 supra (last paragraph).
225Everson v. Board of Educ., 330 U.S. 1, 47 (1947)
(dissenting opinion of
Rutledge, J.).
220 Id.
227 See discussion at notes 105, 108, 111, 125-28, 133-38 supra. "The real issue is
whether the philosophy of education professed in any way diminishes the content and
methodology of the secular subjects taught at these church-connected institutions." Costanzo,
supra2 28note 37, at 649. See also id. at 635. But see Note, 62 Nw. U.L. REv. 253, 262 (1967).
See Note, 22 LA. L. Rxv. 266, 269 (1961).
229 See G. LANOUE, supra note 56, at 32; Gordon, The Unconstitutionality of Public Aid
CALIFORNIA LAW REVIEW
[Vol. S6:260
as to whether the particular course or activity may be publicly funded.
The clearly sectarian purpose of these accouterments produces no infringement of religious liberty, since students attend the parochial schools
of their own volition 8 0 And since public funds are not used to subsidize
these items, but only for the proven secular aspects of the educational
experience, no expenditure of tax money for religious purposes results.
(b) Judicial Definition of "Religion."--Under the analysis proposed
herein, the question whether a particular course or activity serves a
primary secular purpose, a primary religious purpose, or mixed purposes
must ultimately be for the Court. It "must be ready to define religion,
religious teaching and religious commitment. " 2a1 But this would not be
a novel exercise for the judiciary.
As has already been noted,"'2 the Court has on a number of occasions
labeled particular governmental activity religious or secular. In the
Sunday Closing Law Cases, the Court expressed its willingness and obligation to engage in "close scrutiny"2 ' to determine if an action's purpose
and "its operative effect, 2 4 were religious. So, too, should the Court
examine challenged parochial school courses and activities when neces2 5
sary 3
In the Regents' Prayer Case, which is closely analogous to the question in issue, the Court passed judgment on such public school activities
as recitation of the Declaration of Independence (or the Gettysburg
Address) and the singing of the Star Spangled Banner-all of which are
somewhat religiously "permeated"-and concluded that these exercises
were "patriotic or ceremonial" rather than "religious.11aso In the Bible
Reading Cases, the Court ruled that study of the Bible and religion "as
to ParochialSchools, in TBE WATL BETwmEx CGVuCH AND STAT 73, 90 (D. Oaks ed. 1963);
Slough & McAnany, supra note 37, at 61-62.
28
o See also discussion in text accompanying note 551 inra.
231 Kauper, supra note 142, at 294.
282 See discussion in text accompanying notes 112-16 supra.
28 8
McGowan v. Maryland, 366 U.S. 420, 449 (1961).
284 Id. at 453. See also Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S.
582, 592 (1961); Gallagher v. Crown Kosher Market, 366 U.S. 617, 630 (1961). "After all,
the labels a State places on its laws [or a parochial school places on its courses and
activities] are not binding on us when we are confronted with a constitutional decision. We
reach our own conclusion as to the character, effect, and practical operation of the regulation [course, activity] in determining its constitutionality." 366 U.S. at 573 (dissenting
opinion of Douglas, J.).
285 Cf., e.g., Sherbert v. Verner, 374 U.S. 398, 399 n.1 (1961) (practice was found to be
a "basic tenet" of religious creed); Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943)
(practice was found to be an "age-old form of missionary evangelism").
2
36 Engel v. Vitale, 370 U.S. 421, 435 n.21 (1962). Mr. justice Douglas found the words
"under God" in the pledge of allegiance to have a religious purpose. Id. at 440 n.4 (concurring opinion); cf. Mr. justice Brennan's discussion in School Dist. v. Schempp, 374 U.S.
203, 304 (1963) (concurring opinion).
19681
AID TO PAROCHIAL SCHOOLS
part of a secular program of education""as was proper, thus addressing
itself to the very matter under discussion here.
It has been argued that it is extremely difficult to distinguish religious from secular textbooks; s that "the task of separating the secular
from the religious in education is one of magnitude, intricacy and delicacy." 2 9 But just as the Court, if called upon to do so, must determine
whether a public school textbook is religiously indoctrinatory, 4 0 or
whether a public school history course is really religious instruction, it
should make the same constitutional judgment in respect to parochial
school affairs 24 1 When a public school action is found religious the
remedy is to enjoin; when a parochial school practice is held religious,
to forbid its public subsidization.
The general undesirability of requiring the Court to define what is
religious and what is not need not be disputed. But, although the Court
"can and must avoid passing on the truth of particular religious beliefs,1 24 2 it cannot escape the former task. "This necessity arises out of
the constitutional language itself, which sets down religion as a subject
for special treatment." 24 3 A judicial definition must be fashioned under
the "absolutist" theory,2 44 which bars all aid to "religion." It must be
determined under Professor Kurland's thesis, 24 5 which forbids classifications in terms of "religion. ' 246 And it must be faced under the rationale
247
proposed herein.
237 School Dist. v. Schempp, 374 U.S. 203, 225 (1963). See also the lengthy discussion
by Mr. justice Brennan, id. at 266-78 (concurring opinion).
238 Board of Educ. v. Allen, 20 N.Y.2d 109, 122, 228 N.E.2d 791, 798, 281 N.Y.S.2d
799, 809 (1967) (dissenting opinion), prob. juris. noted, 36 U.S.L.W. 3278 (U.S. Jan. 15,
1968). See also U.S. Dep't of Health, Education & Welfare, supra note 20, at 358: "[Ilt is
readily apparent that what one person would classify as simply secular knowledge another
would regard as religious instruction." But see Kenealy, supra note 219, at 204.
28 0 McCoIum v. Board of Educ., 333 U.S. 203, 237 (1948) (concurring opinion of
Jackson, J.).
240 It has been asserted that, "Many of the public school textbooks present Protestantism
in a more favorable light than Catholicism and Christianity more favorably than Judaism
....
There are definite sectarian tendencies in the textbooks." Corley, Objections to Aid
Answered, in EDUCATIONAL FREEDou, 184, 192-93 (D. McGarry & L. Ward eds. 1966)
(emphasis omitted). See also Pflug, Religion in Missouri Textbooks, 36 PME DELTA KAPPAN
258 2(1955).
41
The Court has said of its religious "neutrality" rule that its application "requires
interpretation of a delicate sort," School Dist. v. Schempp, 374 U.S. 203, 226 (1963).
242 Mansfield, Book Review, 52 CALW. L. Rv. 212, 216 (1964), referring to United
States v. Ballard, 322 U.S. 78 (1944).
243 Mansfield, supra note 242, at 216.
244 See text accompanying notes 346-53 infra.
245 See text accompanying note 58 supra.
240
See generally Mansfield, supra note 242, at 215-16.
247
It would undoubtedly ease judicial administration if parochial school students took
all secular courses in public schools as part of a shared time program and then returned to
CALIFORNIA LAW REVIEW
[Vol. 56:260
As has been the case concerning the Court's handling of the issue
of religious exercises and activities in public schools, most decisions under
the proposed rationale for adjudicating these problems in parochial
schools will not be difficult. The Court, guided by common sense and
the obvious effects of the activity, 248 rather than by its own "prepossessions,"-249 may set the standard in a few cases. If abuses occur, they may
be checked by federal or state aid administrators, 250 reviewed by state
and lower federal courts, with ultimate review always available in the
Supreme Court.2 51
Pragmatically,the issue should rarely arise, at least in the foreseeable
future, for it is highly unlikely, as a matter of political reality, that the
total amount of governmental assistance to parochial education will even
approachthe conceded value of the secular educationalservices it renders.
(c) Illustrations.--Keepingthis last point in mind, some specific illustrations of problems that could arise under the proposed rationale may be
helpful. The second grade arithmetic text assigned in a Catholic parochial
school may use sectarian characters, illustrations or examples, phrasing
arithmetic problems in terms of rosary beads instead of apples, 2 5 2 and
using pictures of parochial schools instead of public schools. Or, if the
text is "clean," the teacher may use these illustrations. Trumpet instruction may involve an unusual amount of religiously-oriented music, and
a high concentration of reFrench language instruction may include
2 53
ligously-siguificant words or reading.
the parochial school for the requisite "permeation" and other religious instruction. See
G. LANouF, supra note 56, at 44. But, when essentially the same secular public school course
may be offered in the parochial school, there is little justification for elevating a rule of
administrative convenience into a constitutional mandate. And see text following note 251
infra.
248 See text accompanying note 122 supra.
(concurring opinion of
249McColium v. Board of Educ., 333 U.S. 203, 238 (1948)
Jackson, J.).
2 50
Mr. LaNoue suggests that a major flaw in granting aid to parochial schools would
be that "an authority would have to be set up to supervise local curricula, to censor textbooks for religious material and to investigate infractions and abuses with public money."
LaNoue, supra note 207, at 291. In respect to the rationale proposed herein, this is an overstatement. Perhaps such a public agency should be set up, irrespective of public financing,
as it already is for public schools, to assure that parochial schools offer a sound educational
program. See text accompanying notes 472-75 infra. If public aid is given, however, the
only necessary desideratum (although not, of course, constitutionally required) is to constitute an official to check abuses.
251
See McCollum v. Board of Educ., 333 U.S. 203, 238 (1948) (dissenting opinion of
Reed, J.).
2 52
See 107 AasmlcA 1201 (1962). See also J. Ficamr, supra note 223, at 86; LaNoue,
supra note 207, at 272-73, 275.
2 53
See LaNoue, supra note 207, at 276. See also McGowan v. Maryland, 366 U.S. 420,
445 (1961) (statutes use religiously oriented terms).
1968]
AID TO PAROCHIAL SCHOOLS
Considerations of religious liberty, not present in voluntarily-attended
parochial schools, might prevent all or some of this in public schools.25
But in the examples above, full secular value seems to have been obtained for the time and resources expended, despite the fact that religious
2 5
interests may also have been served. 1
(1) Burden of Justification.-Some educators might urge that the
above uses of sectarian material did not afford the parochial pupils a
secular educational experience completely analogous to that offered in
the public schools. If such a case is made, the state or federal financing
agency and the recipient parochial school should have the burden of
justifying allocation of the full cost of the course to the secular side
of the ledger. Although legislative and executive action ordinarily carries
a much stronger presumption of constitutionality,2 5 6 the Court has forcefully held that this is not the case when the precious personal freedoms
2 57
of speech, press, and religion are at stake
It may seem to some that individual liberty is only indirectly affected
when governmental grants to religious bodies are challenged under the
establishment clause, 258 thus vindicating use of the usual presumption
of constitutionality or something close to it. But the prohibition against
the use of compulsorily raised tax funds for strictly religious purposes,
central to the concept of nonestablishment as an important guarantor of
religious liberty, suggests that here, too, the regular presumption should
be modified. 2 9 Thus, after an opponent of aid initially demonstrates that
a parochial school course or activity is in whole or part primarily religious, in the sense used in this article, the obligation of rebuttal should
rest with those defending aid. In cases of uncertainty, the issue should be
26
resolved against the public funding. 1
254 Cf. Dickman v. School Dist., 232 Ore. 238, 243, 366 P.2d 533, 536 (1961), cert.
denied, 371 U.S. 823 (1962).
255 But see S. Hoox, supra note 59, at 111. The constitutional effect would seem to be
little different than if a parochial school mathematics, music, or language teacher is trained
at public expense, see 20 U.S.C. § 425(b) (3) (1964); id. § 1111 (Supp. I, 1965), and then
uses the techniques discussed in teaching his parochial school class.
256 Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935), and cases there
cited.
257 Cases cited by
justice
Frankfurter in his concurring opinion in Kovacs v. Cooper,
336 U.S. 77, 90-96 (1949).
258
See Comment, 13 U.C.LA.L. REV. 1100, 1113-14 (1966).
259 See Comment, 21 S. CAL. L. REV. 61, 67 (1947); cf. Sullivan, Religious Education'
in the Schools, 14 LAW & CoNT :. PROB. 92, 107 (1949). But see Reed, The "Permeation"
Issue in Federal Aid to Education, 8 CATHOLIC LAW. 197, 201 (1962).
260
But cf. Mitchell v. Consolidated School Dist., 17 Wash. 2d 61, 75, 78, 80, 135 P.2d
79, 85, 86, 87 (1943) (dissenting opinions); State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d
148, 171-72, 11 N.W.2d 761, 773 (1962) (dissenting opinion).
CALIFORNIA LAW REVIEW
[Vol. 56:260
(2) Examples.-In a parochial school biology text or course, after a
full explanation of the theory of evolution, the church's perspective on
the matter may also be fully articulated. 2 1 Or, in the civics course, the
concept of racial equal protection may be amplified by presenting both
the relevant secular and theological values. Since there would seem to be
no constitutional objection to such an objective presentation in the public
schools, 21 2 there should likewise be none here, despite the concurrent
religious educational value, and despite the fact that these matters may
20
They still have
never be mentioned in the average public school classy.
264
Even a parochial school course
significant secular educational value.
25
in "religion" itself may so qualify if properly handled.
There is a very fine line, however, between objective presentation and
subtle commitment,2 60 and this truth is not; confined to parochial schools.
Some texts used in public schools 2 0 -- and, undoubtedly, some teachersunintentionally emphasize Humanistic or antireligious values. 00 Undoubtedly, the opposite is also true. Such emphasis will vary from public
school to public school, dependent in part on the cultural, religious and
racial composition of the students and teachers.20 9 To the extent that this
is constitutionally permissible, effectively unavoidable, or de minimis in
the public schools, it should be similarly unobjectionable in the parochial
schools for the purpose of public funding-subject always to the burden
of justification discussed above.2 70
1
26 See LaNoue, supra note 207, at 465.
262
Cf. McCollum v. Board of Educ., 333 U.S. 203, 235-36 (1948)
(concurring opinion
of Jackson, J.).
263 Smith, Catholic Science Textbooks?, 110 AMe.ICA 78 (1964), suggests that some
public school textbooks in the natural sciences (that are also used in some parochial schools)
fail to mention any relevant religious views. See also the view of Mr. justice Brennan that
"to what extent, and at what points in the curriculum, religious materials should be cited
are matters which the courts ought to entrust very largely to the experienced officials who
superintend our Nation's public schools." School Dist. v. Schempp, 374 U.S. 203, 300 (1963)
(concurring opinion).
264
See Reed, supra note 259, at 197. Even if virtually every parochial school course
contains an objective presentation of the religious viewpoint, see LaNoue, supra note 207,
at 290, it might well pass muster so long as it is not done to the detriment of a reasonably
well rounded secular education. Separate courses on "the lives of the Saints," see CAruorac
ScaooL J., Feb. 1963, at 24 (advertisement), or "the evils of Communism," see id., Jan.
1963, at 22 (advertisement), would present this problem. The defense burden of justification
is here relevant. See discussion in text accompanying notes 256-60 supra.
26 5 See McQuilken, Religious Instruction, 86 CommoiqwxaL 48 (1967).
260 "It is too much to expect that mortals will teach subjects about which their con-
temporaries have passionate controversies with the detachment they may summon to teaching about remote subjects . . . ." McCollum v. Board of Educ., 333 U.S. 203, 236 (1948)
(concurring opinion of Jackson, J.).
267These are sometimes also used in parochial schools. Smith, supra note 263.
2 68
Id.
260 See McCollum v. Board of Educ., 333 U.. 203, 237 (1948) (concurring opinion
of Jackson, J.).
270 See discussion in text accompanying notes 256-60 supra.
1968]
AID TO PAROCHIAL SCHOOLS
A parochial school history course or text may teach that all major
events are related to or produced by one of the basic truths of the religion,2 71 or may emphasize the contribution of one religion over all
others.272 Parochial school texts in English composition may "stress
Catholic religious words and teachings,"'2 73 or a current events class may
use a weekly magazine whose articles are "Catholic-oriented."2 74 An
advanced biology text or course may omit all references to birth control,
sterilization, and euthanasia,2 75 or specifically reject most parts of evolutionary theory and shift scientific concepts so that they appear to be
based on religious tenets. 7 A parochial school geography text may describe only Catholic families in various cultures,2 77 or the teacher may
278
ask the students to map all Catholic churches in the state of Nebraska.
Clearly, some2 79 or all of these parochial school activities, as well as
some referred to earlier, 280 cannot be fully supported with public funds.
Either the quantity of religious perspective has deprived the course of
full secular educational value, or the quality of sectarian permeation has
so slanted the material as to have partially undermined or even fully
destroyed its secular content. The very description of these courses and
texts appears to state a sufficient case to shift the burden of justifying
any quantum of secular value to those defending governmental support.
E. Allocation
It must be reemphasized that, as a realistic matter, problems of the
nature just discussed will arise rarely,2"' as will problems of allocating
cost between religious and secular parts of "mixed" parochial school
activity. As with the issue of permeation, the burden of justifying both
the propriety of the allocation and the method used should be on the
government or recipient defendant once the assailant has made the requisite initial demonstration.
Several problems of allocation that have disturbed courts may serve
as brief illustrations. The cost of bus transportation to parochial schools,
for example, cannot be allocated in "proportional shares as between the
271See
10 (1951).
272 See
27
3See
Albert, Teaching History in the Elementary School, 51
CATHoLIc ScnRooL
J.
A.
STOXES & L. PrFITzR, supra note 27, at 411.
CATHOLIC SCHOOL J., J'an. 1963, at 86 (advertisement).
4
id. at 88.
See LaNoue, supra note 207, at 265.
276
See id. at 284.
27 See
275
2 77
See id. at 271.
278 Sister
279
Julian, Does Johnny Like Geography?, CATHoIac ScHooL J., Jan. 1963, at 66.
The most obviously suspect are those discussed in text accompanying notes 271, 272,
274, 276, and 277 supra.
280See text accompanying notes 207, 218 supra.
281 See text following note 251 supra. But see G.LANouE, supra note 56, at 32.
CALIFORNIA LAW REVIEW
[Vol. 96:260
secular and religious instruction. '2 8 2 The reason is that, as will be amply
shown, 283 the activity fully serves an independent secular purpose. Thus,
its value, if provided by the parochial school while public school children
are bussed at public expense, may be completely listed in the secular
services column. No allocation is necessary.
Suppose that public funds are used to construct a building for educational research on the campus of a church-affiliated college, title being
vested in the school. 284 If the building is always used for this purpose
as contemplated, no allocation problem arises. But suppose, after three
years, the building is to be converted into a chapel and utilized exclusively
for religious purposes. If in the building's three years as a research center,
the total governmental contribution to the college, including the full
amount of the grant for the building, did not exceed the value of the
secular educational service rendered by the college, the matter is closed.
The fact that the building will now be used for religious purposes is
irrelevant. The taxpayers have gotten at least full secular value for their
contribution. But, if in those three years the total governmental contribution, including the grant, exceeded the value of the college's secular
educational services, the building may not be used for religious purposes
until the college reimburses the government for the excess amount or
some other proper arrangement is made. The science of accounting, with
judicial review when appropriate, is neither above nor below the needed
task.
F. Relevant Supreme Court Decisions
Reference has previously been made to passing remarks by some
observers suggesting that existing Supreme Court opinions have already
resolved the problem of aid in parochial schools. 8" It is Everson v. Board
of Education288 that is most frequently cited for this proposition-by
advocates on both sides of the issue. The brief of the National Catholic
Welfare Conference reasons: "The underlying principle of the case is
plain: government aid may be rendered to a citizen in furtherance of his
obtaining education in a church-related school."2 8 It points out that the
majority opinion's stringent interpretation of the establishment clause, 88
although more than a mere dictum, "must be read in the light of the
282 Everson v. Board of Educ., 330 U.S. 1, 46 (1947) (dissenting opinion of Rutledge, .).
2 83
See note 510 infra.
284 Horace Mann League v. Board of Pub. Works, 242 Md. 645, 683, 220 A.2d 51, 72,
cert. denied, 385 U.S. 97 (1966).
285See text accompanying notes 9, 143 suPra.
286330 U.S. 1 (1947).
287National Catholic Welfare Conference, supra note 37, at 417.
2 88
The language is set forth in text accompanying note 8 supra.
19681
AID TO PAROCHIAL SCHOOLS
actual result of the case .... [which is that] secular education in
church-related schools ... is supportable by government, ' 2 9 and in light
of the opinion's edict that the state "cannot exclude . . . [persons],
because of their faith, or lack of it, from receiving the benefits of public
welfare legislation"; 29 0 that there was "careful avoidance by the majority
of any rule which would preclude aid [for] . . .secular subject training."2 1 Finally, it reads the Court's language barring any tax support
for "any religious activities or institutions, whatever they may be called,
or whatever form they may adopt to teach or practice religion," 292 as
only excluding "aid in support of (a) the teaching or practicing of re2 93
ligion ... ; (b) religious institutions as religious institutions.
The argument is incisive and not unpersuasive. But it is by no means
conclusive. An argument at least as convincing can be made the other
way: The whole tone of the majority opinion 294 strongly implied that
bus transportation marked the outermost limit of permissible governmental"2aid. The Court suggested that the plan at bar went to the
"verge ' of the state's constitutional power. The Court said, albeit in
dictum, that the establishment clause forbade a state to "contribute taxraised funds to the support of an institution which teaches the tenets and
faith of any church"; 2 90 that the line to be drawn is "between tax legislation which provides funds for the welfare of the general public and that
which is designed to support institutions which teach religion."2 9 The
latter point seems directly to contradict the "religious institutions as
religious institutions '29 8 conclusion. In the bussing situation presented
289 National Catholic Welfare Conference, supra note 37, at 418. Mr. Pfeffer concedes
supra note 26, at 568.
that the result leads logically to that conclusion. L. PZEF-,
200 330 U.S. at 16.
291 National Catholic Welfare Conference, supra note 37, at 420.
292 See note 8 supra and accompanying text.
293 National Catholic Welfare Conference, supra note 37, at 420-21. See also Costanzo,
supra note 37, at 620-26; Drinan, The Constitutionality of Public Aid to ParochialSchools,
in Tim WAAr BETwEa CHuRcH Awn STATE 55, 66 (D. Oaks ed. 1963). Contra, AmmucNw
3 (1965); 5 Hearings on S.370,
JEWiSH CONGRESS, ScHooLs, SuBsmIEs A=D SEPARAiOa
supra note 148, at 2750 (Statement of Dr. C. Stanley Lowell, Associate Director, Protestants
and Other Americans United for Separation of Church and State). See also W. KATZ, supra
note 48, at 70-71: "This sentence (in Everson] is certainly not free from ambiguity. The
question is whether the thrust is against support of religious teaching or, more broadly,
against any support of institutions which give such teaching. The latter interpretation is
perhaps more easily justified as a matter of grammar." See also R. DpmAw, supra note 50,
at 131-33; Davidow, supra note 131, at 678.
294
See Jones, Church-State Relations: Our Constitutional Heritage, in RLIiox AND
CoNTEmPORARY SocmTY 156, 194 (H. Stahmer ed. 1963); Gordon, supra note 229, at 85;
Pfeffer, in Dorsen, supra note 33, at 38-39.
295 330 U.S. at 16.
29
61d.
297
See id. at 14.
298 See text accompanying note 293 supra.
CALIFORNIA LAW REVIEW
[Vol. 56:260
by Everson the Court stressed that the state "contributes no money to
the schools,"' 29 9 and that the services provided were "indisputably marked
off from the religious function" 0°0 of parochial schools.
In respect to the proposal advanced in this article for aid to parochial
schools, the best that can be said of the Everson opinion 101 is that all discussion by the majority beyond that vital to the result of the case itself
was dictum and that discussion in subsequent Supreme Court opinions 0 2
lends some credence to the proposal urged herein.
Advocates on both sides of the issue also rely on Bradfield v.
Roberts, 303 which held that federal appropriations for ward construction
and care of indigent patients to a hospital in the District of Columbia
operated by the Roman Catholic Church (lid not violate the establishment clause. The National Catholic Welfare Conference contends that
the Court recognized that "the church exercises great and perhaps controlling influence over the management of the hospital."80 4 Thus, it concludes that the Court "did not rule that a direct appropriation to a sectarian institution would be unconstitutional." 3 5 The Conference asserts
therefore that Bradfield and Everson are "clear precedent for aid."3 0
The language relied on in Bradfield, however, may represent not the
Court's conclusion, but its statement of the complainant's allegation. For
the Court carefully explained that the hospital, incorporated by act of
Congress, was simply "a secular corporation being managed by people
who hold to the doctrines of the Roman"Catholic Church, but who nevertheless are managing the corporation according to the law under which
it exists"; 30 7 and that its "property and its business are to be managed in
its own way, subject to no visitation, supervision or control by any ecclesiastical authority whatever, but only to that of the Government which
created it."3 This surely may not be said of parochial schools. But
neither may it be said, as opponents of aid allege, that "[i]mplicit in
this decision is the holding that the Constitution would be violated by a
209 330 U.S. at 18. See also Opinion of the justices, 233 A.2d 832, 835-36 (N.H. 1967).
800 330 U.S. at 18. For specific reliance on this point, see Rhoades v. School Dist., 424
Pa. 202, 233, 226 A.2d 53, 70 (concurring opinion of Roberts,
U.S. 11 (1967).
J.),
appeal dismissed, 389
301 That one member of the five man majority has recently indicated a change of view,
see Engel v. Vitale, 370 U.S. 421, 443 (1962)
(concurring opinion of Douglas, J.), is of
little relevance since only he and Mr. Justice Black presently remain on the Court.
302See text accompanying notes 137-42 supra.
303 175 US. 291 (1899).
804 Id. at 298.
305 National Catholic Welfare Conference, supra note 37, at 416.
3
06 Id. at 422.
807 175 U.S. at 298-99.
808d. at 299.
19681
AID TO PAROCHIAL SCHOOLS
grant of Federal money ... to an institution controlled by a sectarian
organization 8 0 9 or "subject to ecclesiastical authority. 310
A more reasonable conclusion is that Bradfield leaves open the aid
to parochial schools question 31
A number of writers consider Supreme Court decisions involving religion in the public schools as bearing directly on the question of aid
to parochial schools. It is true that McCollum v. Board of Educationin which the Court invalidated "on-premises" released time--does refer
disapprovingly to "the use of tax-supported property for religious instruction."31 2 But the entire opinion makes clear that it was an additional
factor, the "utilization of the tax-established and tax-supported public
school system to aid religious groups to spread their faith, 13 that was
conclusive. 1 4
Zorach v. Clauson-inwhich the Court refused to invalidate the New
York "off-premises" released time plan-does contain the dictum that
"[g]overnment may not finance religious groups .... ,,415 But it is
inaccurate to contend that the Zorach Court distinguished McCollum on
316
the ground that "public . . . funds were not used in New York.1
Rather, the Court stressed that in McCollum "the force of the public
school was used to promote [religious] instruction," ' whereas the Court
found this not to be so in New York.3"
Under the rationale proposed in this article the cases dealing with
religion in the public schools are clearly distinct from the question of
309 L. PEFE
310
811
, supra note 26, at 534.
G. LANouE, supra note 56, at 16.
The case of Quick Bear v. Leupp, 210 U.S. 50 (1908), is also advanced to support
the position that aid to parochial schools violates the establishment clause. The case held
that the federal government could disburse treaty funds, held in trust for Indians and
legally belonging to them, to church-affiliated schools designated by the Indians to pay
tuition costs. The opinion provides no support for the assertion by Mr. Justice Rutledge,
in Everson v. Board of Educ., 330 U.S. at 43 n.35, that "it was stated also that such a
use of public [rather than tribal] moneys would violate... the First Amendment," nor
does careful reading of the Court's language relied on by Mr. Pfeffer, supra note 26, at 535.
812333
813
814
U.S. 203, 209 (1948).
Id. at 210 (emphasis added).
See also id. at 209-10, 212. The author of the McCollum opinion thought that he
had made "categorically clear [that] the McCollum decision would have been the same if
the religious classes had not been held in the school buildings." Zorach v. Clauson, 343 U.S.
306, 316 (1952) (dissenting opinion of Black, J.).
815343 U.S. 306, 314 (1952). Two authors cite this statement as indicative of the
Court's attitude with regard to the invalidity of aid to parochial schools. G. LANouE, supra
note 56, at 23; L. PrF--ER, supra note 26, at 535.
supra note 26, at 535.
316 G. LANouE, supra note 56, at 23; see L. PrEa r,
817343 U.S. at 315.
81
8This "deeper difference" has recently been emphasized by Mr. justice Brennan,
concurring in School Dist. v. Schempp, 374 U.S. 203, 262 (1963). See also id. at 223 (opinion of the Court by Clark, 1.).
CALIFORNIA LAW REVIEW
[Vol. ,,6:260
aid to parochial schools. 319 That the former involve governmental programs lacking independent primary secular purpose has been documented
elsewhere. 320 That at least certain amounts of governmental financial aid
for parochial education serves a primary secular purpose has been documented above.321 Moreover, religion in the public schools involves infringements of religious liberty by compromising students' conscientious
beliefs.32 2 Although aid to parochial schools involves the expenditure of
public money, it has been noted above 23 that use of tax funds for secular
purposes does not violate the constitutionally protected right of conscience.32 4
G. The Doctrine of Alternative Means
Several members of the Court have employed an "alternative means"
rationale in establishment clause cases.325 Mr. Justice Frankfurter has
theorized that "[i]f a statute furthers both secular and religious ends by
means unnecessary to the effectuation of the secular ends alone ... the
statute cannot stand. 326 Mr. Justice Brennan has opined that "[tihe
Constitution enjoins those involvements of religious with secular institutions which ... use essentially religious means to serve governmental
ends where secular means would suffice. 3
'7
Using this doctrine, opponents of aid for parochial schools have urged
its unconstitutionality. They reason that the state's secular goal of main-
taining and improving the quality of education for all students may be
319 Thus, the fact that the Court has invalidated public school prayer and Bible reading, Engel v. Vitale, 370 U.S. 421 (1962); School Dist. v. Schempp, 374 U.S. 203 (1963),
does not render it "most unconvincing to argue that the Court will turn around and permit
the government to subsidize" parochial schools. G. LANouE, supra note 56, at 23.
320 Choper, supra note 4, at 335, 368-77, 387-400.
321See text accompanying notes 145-49, 200-80 supra. For this distinction see Korbel,
supra note 199, at 1021; Sky, supra note 42, at 1465.
322For a fuller discussion of this problem, see Choper, supra note 4, at 368-77, 387-400.
323 See text accompanying notes 155-56 supra.
This reconciles the difficulty of some who find the expenditure of any public funds
in aid of parochial education a much wider breach of the "wall of separation" than the
324
on-premises released time condemned in McCollum or the distribution of Bibles invalidated
in Tudor v. Board of Educ., 14 N.J. 31, 100 A.2d 857 (1953), cert. denied, 348 U.S. 816
(1954). See G. SpicER, T:E SuPREmE CoURT AND FuNAmENTAL FRAEDOMS 82 (1959);
Bryson, Mending the Breach, 65 CmsTIw CENTURY 649, 650 (1948). See also Choper,
supra note 4, at 361-62.
Since public schools are available to all and are wholly financed by public funds, granting some public aid to parochial schools will not produce "pressures to conform-i.e., to
affiliate with some groups which are aided." Davidow, supra note 131, at 687. See also text
accompanying notes 375-77 infra.
32
5See generally Wormuth & Mirkin, The Doctrine of the Reasonable Alternative, 9
UTA. L. REv. 254 (1964).
326
McGowan v. Maryland, 366 U.S. 420, 466-67 (1961) (concurring opinion).
327School Dist. v. Schempp, 374 U.S. 203, 231 (1963) (concurring opinion).
1968]
AID TO PAROCHIAL SCHOOLS
achieved without extending governmental financial assistance to parochial
schools-that is, without the use of what they characterize as essentially
religious means. They recognize that the state is constitutionally forbidden to require all students to attend public schools. 2 But they conclude that the state need only channel aid to the public schools, thus
improving their quality, and concomitantly raise the standards of ac29
creditation for private and parochial schools to a similar level.
There are several points to be made in response. First, a majority of
the Court has never employed the "alternative means" rationale in an
establishment clause case. 3 ' Second, a close reading of Mr. Justice Frankfurter's reasoning indicates that he was only suggesting the doctrine's use
when a statute's primary effect was religious and the purported secular
end was derivative,3 ' as I have used these terms herein. Third, in respect
to government programs that directly serve independent secular ends,
Mr. Justice Brennan stresses utilization of the doctrine when the program
332
jeopardizes "the religious liberties of any members of the community."
If a statute's primary purpose is religious, and it presents no real
danger to individual religious and conscientious beliefs, perhaps it should
be invalid if nonreligious alternative means are available.33 3 And, if a
328 Pierce
v. Society of Sisters, 268 US. 510 (1925); cf. Truitt v. Board of Public
Works, 243 Md. 375, 410, 221 A.2d 370, 391 (1966). But cf. U.S. Dep't of Health, Education & Welfare, supra note 20, at 379.
329 See L. Pras-R, supra note 26, at 569.
33 0
See McGowan v. Maryland, 366 U.S. 420, 450 (1961) in which the Court replied
to the argument that it should be used, "However relevant this argument may be, we
believe that the factual basis on which it rests is not supportable." Cf. School Dist. v.
Schempp, 374 U.S. 203, 224 (1963). Professor Van Alstyne has pointed out that "application
of the 'alternative means' idea might well have produced a different result in the Everson
case, itself," supra note 68, at 879.
33
1 His principal illustration concerned the use of a religion as an engine of civil policy:
"A State may not endow a church although that church might inculcate in its parishioners
moral concepts deemed to make them better citizens, because the very raison d'etre of a
church, as opposed to any other school of civilly serviceable morals, is the predication of
religious doctrine." 366 U.S. at 467. Further, he acknowledged that "the State may guard
its people's safety by extending fire and police protection to the churches," id. In this
instance, where there was an independent primary secular purpose-guarding safety-and
an equally necessary and inevitable aid to religion, the justice would not require the use
of an alternative means-demanding that churches obtain private police and fire protection.
Finally, he concludes his discussion of "alternative means" with the statement that the
"'establishment' contention can prevail only if the absence of any substantial legislative
purpose other than a religious one is made to appear." Id. at 468. Thus, he would find that
if there is a legitimate, independent primary secular purpose, the statute is immune from
establishment attack despite the existence of alternative means.
332 374 US. at 281. He also applies his rationale to action whose primary effect is
religious, that is, action that uses religion as an engine of civil policy-and which endangers
religious liberty. See his discussion of Torcaso v. Watkins, 367 U.S. 488 (1961), in this
context, 374 U.S. at 265.
833 But see note 51 supra; text following note 83 supra.
CALIFORNIA LAW REVIEW
[Vol. 56:260
statute's primary purpose is secular, and it presents threats to religious
freedom, a persuasive argument may be made that the alternative means
doctrine should be employed8 4 But if a statute's primary purpose is
religious, and it is likely to result in compromising the individual's religious or conscientious beliefs, as I have argued here 85 and elsewhere, 880
it should violate the establishment clause even in the absence of an
alternative means. And, finally, if a statute's primary purpose is secular,
and it does not impinge on rights of conscience, I would suggest that the
alternative means doctrine should not apply even though the statute
inevitably affords some aid to religion. Such a statute presents none of
the evils at the core of the establishment ban, and to subject all such
legislation to judicial review, for a search for alternative means that
afford no aid whatever to religion, would bring innumerable measures
before the Court and unnecessarily involve it in an essentially legislative
task. 87 Governmental aid to support the secular aspects of parochial
education falls into this final category.
Even if the alternative means rationale were applicable to this final
category, it is not clear that aid to parochial schools would be invalid.
Mr. Justice Brennan apparently did not exclude this final category discussed above from the doctrine's coverage, 88 but he did state that the
means used would be invalid only if the secular objectives of the state
could be "effectively achieved in modem society" 8 by the alternative
nonreligious means. So, too, Mr. Justice Frankfurter would have applied
his thesis only "where the same secular ends could equally be attained
by means which do not have consequences for promotion of religion. 8 340
Similarly, commentators speak in terms of "practical alternatives less
likely to offend the first amendment," and achievement of the public
without unreasonably increasing costs
purpose "by nonsectarian methods
8' 41
or administrative burdens.
A forceful argument may be made that; it would be highly ineffective
8 4
3 See Choper, supra note 4, at 370 n.240, 383; Moore, The Supreme Court and the
Relationship Between the "Establishment" and "Free Exercise" Clauses, 42 TxAs L. Ray.
142, 188 (1963).
885 See text accompanying note 53 supra.
836 Choper, supra note 4, at 332-34, 348-50.
837 Cf. Southern Pac. Co. v. Arizona, 325 U.S. 761, 794 (1945) (dissenting opinion of
Black, J.). For example, challenge to the constitutionality of fire protection for church
buildings could be made on this basis, see note 331 supra.
8 He treated the establishment clause objection to Sunday closing laws which conceded "secular purpose"--and did not comprehend a violation of religious liberty claim
(which was made by Sabbatarians under the free exercise clause, see Braunfeld v. Brown,
366 U.S. 599 (1961))-as being subject to the "alternatives" rationale. 374 U.S. at 263.
839 374 U.S. at 265 (emphasis added). See also id. at 281.
840 366 U.S. at 467 (emphasis added).
841 Comment, 13 U.C.L.AL. REV. 1100, 1109 (1966) (emphasis added). See also Trultt
v. Board of Pub. Works, 243 Md. 379, 221 A.2d 370 (1966).
1968]
AID TO PAROCHIAL SCHOOLS
and impractical to aid only public schools and simultaneously raise the
accreditation standards for all others. 3 1 Apart from the limits that the
free exercise clause might place on the state's ability so to regulate
parochial schools, 34 such action could well result in a large influx of
private and parochial school students to the public schools. Tax funds
would have to be used for construction of expanded public school facilities, and an inefficient and uneconomic waste of existing parochial school
facilities would result. 34 4 "Such pragmatic considerations would be irrelevant if the command of the Constitution were clear . . . [but] the lack
of an effective alternative should be highly relevant when a plausible con-
stitutional defense can be made . .. .
To summarize briefly, the establishment clause should be held to
prohibit nonsecular government action that infringes religious belief,
and to forbid taxing for strictly religious purposes. Therefore, as applied
to questions of parochial school aid, the establishment clause should not
be held to prevent government from subsidizing these schools to the
extent that they provide secular services. As long as the government gets
its money's worth of things secular, it should make no difference that the
supplying institution is somehow religious in nature. The establishment
clause, rather than asking whether religious institutions inevitably benefit
thereby, should instead ask whether the government is receiving the full
value of secular services purchased. The question, consequently, is not
whether to aid parochial schools which supply secular services, but rather
how much aid to extend. In resolving that inquiry, the courts must first
characterize an educational service or activity as generally religious br
secular. If secular, the government may subsidize it at full value; if religious, those defending the aid should carry the burden of showing that
the activity contains specific secular aspects entitled to aid. In conclusion, however, it must be remembered as a political reality that the
necessity for such allocation will generally remain academic as long as
parochial schools continue to provide considerably more in secular
services than they receive in aid.
v
OTHER THEORIES
Earlier discussion has traced the operation of a proposed rule for
testing the constitutionality under the establishment clause of aid to
342
On the question of whether the state may obtain its educational objectives by merely
aiding public schools and doing nothing in respect to parochial schools, compare Van
Alstyne, supra note 68, at 878, with Kauper, Religion, Higher Education and the Constitution, 19 ArA. L. REv. 275, 288 (1967).
843 See discussion at notes 479-89 infra. See also Sky, supra note 42, at 1448-49.
844 Note, 41 N.Y.U.,. RFv. 983, 987 (1966).
345 77 HAav. L. REV. 1353, 1358 (1964).
CALIFORNIA LAW REVIEW
[Vol. 56:260
parochial schools. Reference will now be made to other theories involving
aid to parochial schools and the establishment clause, with particular
examination of their own internal consistency and viability and with the
intention of further illuminating certain aspects of the constitutional proposals made in this article.
A. Absolutism
The so-called "absolutist" theory, mentioned earlier, 8 "1would prohibit
all aid which benefits religious institutions either directly or indirectly,"4 7
sustaining "appropriations only when it can be found that in fact they
do not aid, promote, encourage or sustain religious teaching or observances, be the amount large or small. 8 48 This view "assumes both that
state and religion coexist in mutually exclusive and self-contained spheres
and that each sphere can be sharply defined. 49 It would seemingly invalidate use of public library books for reading assigned by a parochial
school teacher, 5 ' the stationing of policemen near parochial schools, fire
protection and other municipal services for parochial schools, 5 and the
laying of sidewalks at public expense in front of parochial schools. All
these publicly funded activities may fairly be said directly or indirectly
to benefit parochial schools and aid, promote and encourage the religious
teaching that takes place therein. 2 It may accurately be concluded that
the absolutist theory is "of such far-reaching consequence, and in conflict with so many practices, that it is neither administratively, politically,
nor ethically [nor constitutionally] tenable." '53
346 See text accompanying note 57 supra.
47
3 See Greenawalt, in Dorsen, supra note 33, at 44.
Everson v. Board of Educ., 330 U.S. 1, 53 (1947) (dissenting opinion of Rutledge, J.).
349 77 HARv. L. Rnv. 1353, 1357 (1964).
850 Cf. Linde, Constitutional Rights in the Public Sector: Justice Douglas on Liberty
in the Welfare State, 40 WAsH. L. REy. 10, 28 n.239 (1965).
351 It does not do to distinguish these as "matters of common right, part of the general need for safety. Certainly the fire department must not stand idly by while the church
bums." Everson v. Board of Educ., 330 U.S. 1, 60-61 (1947) (dissenting opinion of Rutledge, J.). Secular education is as much a matter of common right, part of the general
need for an intelligent citizenry. Certainly the state must not stand idly by while children
are inadequately educated.
Nor does it do to say that "education which includes religious training and teaching"
has been made a matter "of private right and function" by the free exercise clause, see
Pierce v. Society of Sisters, 268 U.S. 510 (1925), and that the use of public funds to defray
its cost, therefore, cannot be said to be "for a public purpose." Everson v. Board of Educ.,
330 U.S. 1, 51 (1947) (dissenting opinion of Rutledge, J.). Eating fish on Friday may also
have been a matter of private right protected by the free exercise clause. But government
distribution for health purposes (a primary secular purpose) would not have been barred
by the establishment clause.
852
See National Catholic Welfare Conference, supra note 37, at 455; Comment, A
Constitutional Analysis of the Wisconsin Bus Law, 1962 ,Vis. L. Rav. 500, 516.
asa LaNoue, supra note 60, at 79.
348
AID TO PAROCHIAL SCHOOLS
1968]
B. Child Benefit v. Aid to School Itself
The so-called "child-benefit theory"3'54 also fails in its purpose of both
presenting a viable constitutional test and confining the amount of permissible public aid for parochial education. This approach takes several
forms. Principally, the theory distinguishes between valid public assistance to aid the child and invalid public assistance to aid the parochial
school itself. Under it, "lunches, textbooks, bus transportation, and health
services" are "clearly constitutional"; 3 5 appropriations for "language
instruction and laboratory facilities" 356 are uncertain; grants "for building, maintenance and teachers' salaries are foreclosed."3 5
Although this theory may be characterized as "a workable compromise interpretation of the First Amendment,13 58 it places form over
substance. The hard fact is that aid for any secular educational purpose,
from transportation and textbooks to construction of a science laboratory
and payment of a Spanish teacher's salary, helps the child to take his
proper place in society 59 "There is no logical stopping point. 3 60 The
"child benefit theory" thus has no reasoned limits and misses "the real
issue, which is the nature of the benefit and its relationship to the 'Establishment Clause.' ,16 a subject already discussed at length herein.
The implicit rationale of the majority in the Everson decision suffers
the same defect. It upheld public payment of bus transportation on the
ground that the children were merely "receiving the benefits of public
welfare legislation, ' 3 2 yet suggested, in strongest dictum, 6 3 that this
was as far as the establishment clause would extend. But it must be
granted that state subsidization of all secular education similarly affords
854 For judicial development of the theory, see Cushman, supra note 185, at 337-39.
For description of the congressional attempt to fashion the Elementary and Secondary
Education Act of 1965 to fit the theory, see Kelley & LaNoue, The Church-State Settlement
in the Federal Aid to Education Act, 1965 R IGION & PUB. ORDER 110 (D. Giannella
ed.); Taylor, FederalAid for Children and Teachers in All Schools, 12 CATHoLIC LAW. 193,
195 (1966).
85 Jones, The Constitutional Status of Public Funds for Church-Related Schools, 6
& ST. 61, 72 (1964).
J. CH 33Rc
856 Id.
357 Jones, supra note 294, at 196.
858 Id. See also Giannella, supra note 199, at 572-81.
859 See, e.g., Note, 12 Mo. L. REv. 465, 468 (1947); Comment, 6 U. DfET. L.J. 174,
176 (1943).
860 Everson v. Board of Educ., 133 N.J.L. 350, 359, 44 A.2d 333, 339 (1945) (dissenting opinion). See also 35 CoNN. BJ. 119, 125 (1961); 1 BmL oF RiGHTS REv. 307, 309
(1941).
86
lNote, 41 IND. L.J. 302, 309 (1966).
862 330 U.S. at 16.
86S See text accompanying notes 294-300 supra.
CALIFORNIA LAW REVIEW
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children the benefits of public welfare legislation8 4 The establishment
clause should forbid no aid in that category 6 5
The Everson majority seemingly also sought to draw a line by emphasizing that in the case at bar "the State contributes no money to the
schools. ' 36 6 On the basis of this reasoning, it has been concluded that
"direct grants to sectarian schools are prohibited,""6 and that "grants for
assistance in the construction of general school facilities and for increasing teachers' salaries, to be administered by governmental agencies and
made available directly to sectarian schools, are the clear case of what is
proscribed by the Constitution." 6 '
Closely akin to the "child benefit theory,"36 9 this rationale also places
form over substance. The constitutional result turns on the payee of
money or recipient of property, whatever the primary effect of the government action or whoever the true ultimate beneficiary. 70 It would
invalidate a consignment of microscopes to a parochial school or a grant
of funds to construct a science laboratory regardless of the clear secular
purpose. "Similarly, if the only reasonable or practicable means of providing fire and police protection were to give a religious school public
funds and have it perform this function itself,13 71 such granting of funds
would also be unconstitutional. Surely, it should make no constitutional
difference if arithmetic textbooks are given to the parochial school rather
than to the pupil or a public library from which he may withdraw them.872
It is argued by some that if direct grants to parochial schools do not
violate the establishment ban, then nothing does except discrimination
among religions,373 thus challenging the Supreme Court's unequivocal
position that governmental support of all religions is forbidden. 74 Not
true. Under the rationale I propose, governmental aid may not exceed
the value of the secular services even where given to every religion.
It is contended that providing school bussing or laboratory equip364See, e.g., P. KAuPaR, FRONTERS OF CoNTS=uvoNAL LiBERTY 136 (19M6); Boyer,
Public Transportation of ParochialSchool Pupils, 1952 Wis. L. Pxv. 64, 85; Comment, 21
S. CAL. L. REV. 61, 75 (1947); Note, 60 HAnv. L. REv. 793, 800 (1947); 3 INRA. L. REv.
147, 153 (1948).
8 65
See Katz, Freedom of Religion and State Neutrality, 20 U. Cm. L. Rav. 426, 440
(1953).
866 330 U.S. at 18. See text accompanying notes 296-99 supra.
367 U.S. Dep't of Health, Education & Welfare, supra note 20, at 361.
368 Id. at 373. Cf. P. KAUPER, supra note 5, at 106-07.
869See Cushman, supra note 185, at 347.
87 0
See Everson v. Board of Educ., 330 U.S. 1, 55-56 n.50 (1947) (dissenting opinion
of Rutledge, J.).
871 Comment, 11 ST. Louis UL.LJ. 464, 471 (1967).
872 Cf. Sky, supra note 42, at 1457-58. See text accompanying notes 530-33 infra.
878U . Dep't of Health, Education & Welfare, supra note 20, at 373-74.
8 74
See note 59 supra (Last paragraph).
1968]
AID TO PAROCHIAL SCHOOLS
ment to a parochial school should be invalid because this makes "access
to this public welfare benefit.., dependent on conditions set by a religious group. These conditions will generally involve conformity to a religious creed or practice as the price for admission to the school and its
publicly donated equipment.1375 It may be true that "placing citizens in
the position of having to accept church authority in order to obtain necessary public welfare benefits . . . constitutes an establishment of religion. 31 7 6 But it is not true that providing parochial schools with secular
educational services has this effect. Under the rationale I propose, parochial schools would get no greater benefits than are already accorded
public schools. Thus, access to the77 benefits is in no way dependent on the
acceptance of church authority
Perhaps the greatest weakness in the "child benefit theory" and the
"no money to the parochial school" rationale 378 is that they permit public
funds to be used for strictly religious purposes, beyond use for secular
purposes, in contravention of a basic thrust of the establishment clause.
Proponents of the "aid the child" approach advocate direct state subsidies
to parents who may then choose any school for their children's education,379 subject to the state's right of accreditation 8 "Thus the schools
public funds; only parents and their
would in no way be subsidized with
381
subsidized."
be
would
children
No one denies that these subsidies would ultimately reach the parochial school's treasury; such a result would probably be a specific condition of the awards. 82 After all, that is their precise purpose. Thus, if
37 5
LaNoue, supra note 60, at 91.
876 Id. at 91-92. The free exercise claim is even more apparent.
877 Other considerations are present if the church-related school is in fact the only
realistically available school. See text accompanying notes 436-39 infra.
3 78
As is true of other approaches to be discussed, both the "child benefit" and "no
money to parochial school" rationales fail to fulfill their purported aims because of the freed
funds factor, which produces precisely the effects they seek to avoid. See text accompanying
notes 407-15 infra.
379 V. BLum, FREOw o
O" CHOICE im EDucATiox 29-30 (1958). See also Hayes, supra
note 201, at 111; Note, 29 FoRDHAm L. Rv. 578, 580 (1961).
380The subsidy may take several analytically indistinguishable forms: (a) Direct appropriation. (b) Tax Credit. For discussion, see V. BLort, supra note 379, at 19-22 passim.
See also Freeman, Tax Credits and the School-Aid Deadlock, 194 CATHOLIC WORLD 201, 207
(1962), for the view that a tax credit is "free from constitutional challenge ...because
it funnels out no public money and avoids contact between government and the private
school." (c) Tax deduction.
a81V. BLUAr,supra note 379, at 30.
882
See Brown, State Constitutions and Religion in Education, in EDucATOixAL FREEDo 163, 183 (D.McGarry & L. Ward eds. 1966). "Since tuition charges are flexible and
in Roman Catholic schools are often far below operating costs, the charges could readily
be adjusted upward to take advantage of the parents' subsidies." Nelson, Proposal on the
School-Aid Impasse, 78 CmSTAH CE rRy 448, 449 (1961). See also Almond v. Day, 197
CALIFORNIA LAW REVIEW
[Vol. 56:260
the public subsidy exceeds the value of the secular educational service
rendered, tax funds are being utilized for strictly religious purposes.888
The parent subsidy theory fails to recognize this difficulty. Tax funds
could be used for religion even if the amount given is only "equal to the
sum expended on every child who attends the free schools, 88 4 because
there is no guarantee that the parochial school offers the same quantum
of secular education as the public schools, nor that the lesser quantum
offered costs the parochial school as much as the sum made available to
it. 85 The strictly religious use of tax monies could result even if the
amount given is only "part of a tuition which is itself considerably less
than the cost of education at the school attended,M8 because even this
smaller governmental subsidy might 87exceed the cost or value of the
secular educational service rendered.
A "subsidy-to-the-parent-for-school-tuition" plan is not analogous to
a government old age assistance program.88 8 In the latter instance the
subsidized citizen may spend the money in any way he wishes, save it, or
give it away. Government does not condition its grant, as it does the
parent subsidy scheme, on the recipient's channeling the funds to a
specific, limited class of ultimate beneficiaries, which class includes
church-affiliated institutions.
That a person receiving old age assistance donates a portion to his
church presents no colorable establishment clause issue. It is analytically
Va. 419, 426, 89 S.E.2d 851, 856-57 (1955); Lowell & Southgate, POAU Position on ChurchState Relations, 5 J. CEnacH & ST. 41, 51 (1963); Note, 36 FoRDHAr L. Rav. 129, 131
(1967); Note, 42 VA. L. Rav. 437, 438-39 (1956).
888 This may explain the result in Swart v. South Burlington Town School Dist., 122
Vt. 177, 167 A.2d 514, cert. denied, 366 U.S. 925 (1961), which invalidated a tuition plan.
The Vermont statute authorized payment of full tuition "but not in excess of $325.00 unless
authorized by a vote of the town school district," 122 Vt. at 179, 167 A.2d at 515. The
amounts appropriated to Roman Catholic high schools may have covered both secular and
religious educational costs, although the opinion gives no indication. It has been argued that
"without doubt the real reason for the decision lay in the fact that tuition payments, which
were made directly to the schools, were not in some manner apportioned to support of
the nonreligious instruction given." Slough & McAnany, supra note 37, at 69. See also
Alciatore, Federal Aid to Church-Related Schools and the Constitution, 65 CAThotzc EDuc.
REV. 383, 393 (1967); National Catholic Welfare Conference, supra note 37, at 420 n.54.
The court's opinion affords scanty support for this view.
384 R. DpmIAx, supra note 50, at 196.
885 See discussion accompanying notes 183-199 supra.
88
OV. BLtm, supra note 379, at 28.
3871t has been argued that a tax deduction, see note 380 supra, "would not corrupt
the Constitution any more than the tax deduction now allowed those who make charitable
donations to churches." Tnn REPoRrmx, Mar. 30, 1961, at 12. Perhaps the latter deduction
survives attack on the ground that the benefit to the ultimate beneficiary religious groups
does not exceed the value of the secular services they render. The topic, although obviously
pertinent, is generally beyond the scope of the discussion.
888 Contra, V. Bvm, supra note 379, at 32-34.
19681
AID TO PAROCHIAL SCHOOLS
identical to a public employee's donating a portion of his compensation
to his church3 9 There is not the slightest government compulsion to
ultilize tax funds for religious purposes. But a government condition that
a tuition subsidy be transferred to some school of the parent's choice
(including a parochial school) is analytically identical to a state payment
to any voluntary association that a recipient joins (including his church
or synagogue). Government has thereby restricted full freedom of choice
as to how tax funds will be spent. It has singled out religion, albeit as
part of a somewhat larger category, for government financial aid. If the
ultimate religiously-affiliated beneficiary does not render secular services
in return, tax raised funds will be used for strictly religious purposes. As
has already been observed,3 90 this result is contrary to the underlying
purposes of the establishment clause.
For these reasons, under the theory advanced in this article, certain
provisions of the old "G. I. Bill of Rights"3'91 seem to violate the establishment clause. 9 2 Under that bill, as reportedly administered, the
government paid tuition directly to the veteran's school, even if it was a
theological seminary.3 93 This was not a case in which "GI's are paid a
certain amount which they can use in any way they want... [as] compensation for their serving in the armed forces."3'94 That would be like
old age assistance. The G. I. Bill, however, was a case of "conditioned"
benefits, within a fairly limited category, as described above. 95
The funneling of tax money to theological seminaries appears to
serve a strictly religious purpose.3 96 That this is "education they would
389 Cf. Rawlings v. Butler, 290 S.W.2d 801, 806 (Ky. 1956); Zellers v. Huff, 55 N.M.
501, 522, 236 P.2d 949, 961-62 (1951); Hysong v. Galitzen Borough School Dist., 164 Pa.
629, 656-57, 30 A. 482, 483-84 (1894).
390 See text accompanying note 60-66 supra.
891 Serviceman's Readjustment Act of 1944, 58 Stat. 287.
832 See Sullivan, Religious Education in the Schools, 14 LAW & CoNTmMP. PROS. 92,
109-10 (1949). But see Blum, Academic Freedom and Tax Support for Independent Education, 40 PHI DELTA KAPPAN, 349, 353 (1959).
893 Secretary of Health, Education & Welfare, Federal Programs Under Which Institutions With Religious Affiliation Receive Federal Funds Through Grants or Loans, March
28, 1961 (memorandum), in S. Doc. No. 29, 87th Cong., 1st Sess. 37, 44 (1961). Blum,
supra note 392, at 352, reports that "approximately 36,000 veterans used federal money
to pay for training as Protestant ministers. .. '
304 Comment of Mr. Pfeffer, in Religion and Freedom, supra note 206, at 13.
39
5Itis of interest to note that the Higher Education Act of 1963, 20 U.S.C. § 751 (a) (2)
(1964), bars funds for use in divinity schools. See also PA. CONST. art. III, § 18.
396 For the suggestion that there might be some exception due to an exercise of the war
power, see Note, 8 LA. L. Rav. 141 n.20 (1947); cf. Bowker v. Baker, 73 Cal. App. 2d 653,
655, 167 P.2d 256, 257 (1946). But cf. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
Perhaps all or some of the tuition might be justified on the ground that clergymen perform
a number of primary secular services. See also note 132 supra.
CALIFORNIA LAW REVIEW
[Vol. 56:260
have undertaken had they not been taken in the Army 8 0 7 is irrelevant.
On this theory, the government could make contributions to any voluntary association to which the veteran had belonged because he would
have done so had he been at home. Moreover, excluding theological seminaries from the Bill would not appear to have been a denial of free exercise for religion does not demand attendance there. 8 Further, every
veteran, whatever his religion, could have his tuition paid for secular
education at any accredited institution, including those that are churchrelated."9
C. "Earmarking"
1. Restricted Grants
Another effort to draw a line regarding the constitutionality of aid
to parochial education may be described as the "restricted purpose" or
"earmarking" theory. Its thrust is that, where the public funds awarded
to church-affiliated schools-or to students attending them-are designated for specific secular purposes, the nonestablishment precept is satisfied because such grants, unlike more general grants, would not finance
religious functions. 0 Thus, allocation of public funds for improving
secular educational methods, construction of dormitories, acquisition of
science, mathematics and foreign language equipment, 01 textbooks also
used in public schools, 0 2 and scientific and medical research40" are
valid.V 0 4 On the other hand, governmental appropriations "with no restrictions and no direction as to the purposes for which the money can
be spent would be unconstitutional." 40 5
The majority opinion in Everson lends some support to this "restricted purpose" theory. It spoke of bus transportation, ordinary police
and fire protection, connections for sewage disposal, and public highways
897 2 Hearings on H.R. 2361, supra note 35, at 1614.
Cf. note 59 supra. See also note 55 supra.
9See State ex rel. Atwood v. Johnson, 170 Wis. 251, 176 N.W. 224 (1920).
400 52 IA. L. Rv. 571, 574 (1966). Cf. Kauper, Separation of Church and State-A
Constitutional View, 9 CATHOLiC LAW. 32, 42 (1963).
4 01
See US. Dep't of Health, Education & Welfare, supra note 20, at 375-76.
4 02
See id. at 368; Borden v. Louisiana State Bd. of Educ., 168 La. 1005, 123 So. 655,
661 (1929).
4 08
See Lowell & Southgate, supra note 382, at 52-55.
404 Some would distinguish among these items. Thus, of those items mentioned in the
text, Protestants and Other Americans United (POAU), see id., would seem to approve
only of research grants. But since all serve strictly primary secular purposes, they appear
analytically indistinguishable. In fact, it has been pointed out that research grants afford the
recipient institution significant additional assistance in attracting strong faculty, "enriching
the educational program, developing better facilities, drawing higher quality students, and
diversifying sources of income." Kratz, supra note 193, at 210.
405 5.Hearings on S. 370, supra note 148, at 2524 (Statement of Senator Morse).
898
89
196s1
AID TO PAROCHIAL SCHOOLS
services
. . 4. °separate and . . .
government
as "general
and
sidewalksmarked
function."
the religious
off from
indisputably
2. Freeing of Funds
The "restricted purpose" or "earmarking" rationale, however, is not
a viable constitutional test. Although use of the public funds may be
strictly limited to the ends designated, their allocation releases additional church funds for strictly religious purposes 4°---be it for religious
proselytizing, the purchase of religious insignia, or any of a countless
number of other purely religious ends. Because of this "freed funds"
effect-hardly a matter that may be deemed "immaterial ' 408 by the advocates of this rationale-the theory effectively fails to fulfill its own
purposes and places form over substance.
To avoid this consequence, it has been argued that a grant may be
"earmarked for a specific purpose which would not otherwise be undertaken by the recipient .... 1 4o9 But this is an inquiry more easily stated
than demonstrated. For example, that the cost of textbooks or transportation had formerly been borne by the parents, 41 does not mean that their
provision now by the state will not provide additional funds to the religious institution.4"' The latter could now easily and justifiably increase
its tuition charge, thus providing it with funds available for strictly
religious use.4 12
Even if the property or service which the government finances had
not previously been part of the parochial school's-or parents'-activities, it cannot be said with any confidence that funds are not freed. It
400 330 US. at 17-18. Since these serve strictly secular purposes, it is difficult to distinguish them, on this "earmarking" analysis, from other such services. But see text
accompanying note 443 infra.
4
oT See Letter from Professor Sutherland to Senator Morse, in S. Doc. No. 29, 87th
Cong., 1st Sess. 60 (1961); 79 CHIUSTIA CENT'URY 617 (1962) (editorial); 77 HARv. L. Rv.
1353, 1354 (1964); 59 MlcH. L. Rv. 1254, 1255 (1961).
408 Opinion of the Justices, 99 N.H. 519, 522, 113 A.2d 114, 116 (1955).
409 US. Dep't of Health, Education & Welfare, supra note 20, at 370. See also Moore,
supra note 334, at 161. The Elementary and Secondary Education Act of 1965 attempts to
meet this qualification. It forbids grants for instructional materials if institutional funds
would ordinarily have been used for like materials, 20 U.S.C. § 823 (a) (5) (Supp. I, 1965),
and for specialized educational services if normally provided by the nonpublic school,
45 C..R. § 116.19(d) (1967).
410
In respect to textbooks, see Board of Educ. v. Allen, 27 App. Div. 2d 69, 72, 276
N.Y.S.2d 234, 238 (1966). Regarding transportation, compare Comment, Hospital Aid and
the Establishment Clause: Conflict or Accomodation, 13 U.C.L.A.L. REV. 1100, 1107 (1966),
with L. PrazxER, supra note 26, at 178; State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148,
152, 115 N.W.2d 761, 763 (1962).
411But see Cochran v. Board of Educ., 281 U.S. 370, 375 (1930); LaNoue, supra note
60, at 80; 36 Ky. L.J. 228, 330-31 (1948).
412 See note 382 supra.
CALIFORNIA LAW REVIEW
[Vol. 56:260
would be extremely difficult to prove that the parochial school, or the
parent, would not have itself undertaken the matter in the near future41 8
-the question not infrequently turning on the subjective thoughts of the
school's administrators or all parents, or on the credibility of their testimony in respect thereto. In addition, a court may "be compelled to
examine the financial structure of the school, its previous success or failure in fund-raising campaigns, and the proposed allocation of its resources.) 414 This approach might produce an undesirable situation
whereby the parochial school administrators or the parents would
defer providing a particular service because to provide it now would make
a subsequent government subsidy unconstitutional. Finally, it would be
virtually impossible to prove that the parochial school would never have
itself undertaken the project-be it special remedial reading, field trips,
special tutoring, or even a "head-start" program. 415 It is more natural
to assume that any service provided by public schools is also within the
reasonable contemplation of parochial schools.
"Earmarking" is of no consequence under the rationale proposed in
this article. Nor is the freeing of funds which is an effect of even police
and fire protection.4 16 Rather, the crucial inquiry is whether the total
government assistance exceeds the value of the secular educational service rendered. The state funds may be paid to the parent or directly to
the school so long as they serve a primary or independent secular purpose,
as defined herein.
Even if the parochial school endorsed the government's bank draft
directly to a seller of religious books or insignia, it should be of no
constitutional significance; 417 this is logically no different than the
school's endorsing the draft to a seller of dictionaries or bus transportation, and then drawing a check on funds in its own account-which it
would otherwise have used for the dictionaries or bus transportation-to
pay for the religious books or insignia. Even if the state, at the parochial
school's request, were itself to supply religious tracts to the school 418unlikely as this may be-there should be no issue if the total public
appropriation to the school were not greater than the value of the secular
services rendered; this is analytically the same as the state supplying
dictionaries to the parochial school and the school then buying the reli418See Note, The Elementary and Secondary Education Act of 1965 and the First
Amendment, 41 IN. L.J. 302, 314-315 (1966); Comment, supra note 410, at 1107.
414 41 N.Y.U.L. REv. 983, 986 (1966).
415 See CATHoLic ScHoO0 I., June 1965, at 13-15.
416
See note 185 supra.
417 Cf. State ex rel. Nevada Orphan Asylum v. Hallock, 16 Nev. 373, 387-88 (1882).
418
But see Board of Educ. v. Allen, 20 N.Y.2d 109, 121, 228 N.E.2d 791, 797, 281
N.Y.S.2d 799, 808 (1967) (dissenting opinion).
1968]
AID TO PAROCHIAL SCHOOLS
gious tracts with the funds freed. Of course, the state should not be able
to condition its grant on use for religious purposes. In that case, although
the parochial school might use the funds thus freed for secular purposes,
the grant would not assure this result. Only a religious end would be
guaranteed, and by conscious government dictate. This the establishment
clause forbids without further inquiry or computations. 419
D. Child Benefit "Revisited"
Having considered the "child benefit" and "earmarking" theories,
what may be termed the "LaNoue-child benefit revisited" theory merits
some attention. Mr. LaNoue submits three criteria as the bases for a
constitutional formulation respecting aid to parochial schools :420 First,
if the aid goes directly to the parent or child, no religious institution
should acquire new property through the state action. (The shortcomings
of this criterion have already been fully explored. 421) Second, all control
over administration and spending of the public funds should remain with
42 2
the state-for example, the state should select any textbooks provided.
(But, whoever the selecting agency, establishment clause values are preserved if the book is to be used for a primary secular purpose. 3 ) Third,
no religious use should be made of what the state provides. (This ignores
the freed funds effect.4 24)
E. Aid to Hospitals Distinguished
Government grants and loans for hospital construction, to institutions
including those that are church-affiliated, 425 generally conceded to present
no establishment clause problems, 42 6 are analogous to public financing
of the secular aspects of parochial education.4 27 Just as the state may
text following note 158.
LaNoue, supra note 60, at 90-91.
421 See discussion in text accompanying notes 354-390 supra.
422 Cf. Chance v. Mississippi State Textbook Rating & Purchasing Bd., 190 Miss. 453,
410 Cf.
4 20
462, 200 So. 706, 708 (1941); Board of Educ. v. Allen, 20 N.Y.2d 109, 116, 228 N.E.2d 791,
794, 281 N.Y.S.2d 799, 804 (1967); W. VA. CoDa ANN. § 1782(2) (1961).
423 For elaboration, see discussion accompanying notes 200-80 supra. See also text
accompanying notes 464-65, 520-33 infra.
424 See text accompanying notes 407-15 supra.
425The Hospital Survey and Construction Act, 42 U.S.C. § 291 (1964), better known
as the Hill-Burton Act, authorizes grants and loans for up to two-thirds of the cost of
construction of general hospitals and other medical facilities.
426 See text accompanying notes 303-11 supra.
42 7
In Quick Bear v. Leupp, 210 U.S. 50, 74 (1908), the Solicitor General argued, "A
school, like a hospital, is neither an establishment of religion nor a religious establishment,
although along with secular education there might be, as there commonly is, instruction in
morality and religion, just as in a hospital there would be religious ministrations." While
there may be differences in degree beyond those he indicated, they should not be consequentigl for establishment clause purposes. See discussion at notes 428-39 infra.
CALIFORNIA LAW REVIEW
[Vol. 96:260
"ecare for the destitute il1, ' ' 428 so, too, may it provide for the educational
advancement of its citizenry. To paraphrase Mr. Pfeffer, "As long as the
sum paid to the denominational [school for the cost of its nonreligious
education] does not exceed the amount the state would be required to
expend to [provide this education in public schools], the [parochial
school] is not really receiving government aid." 42 9
The cases have been distinguished by some, principally on the grounds
that admission to religiously-affiliated hospitals is on a nonsectarian basis
and that the hospitals make no attempt to promote religious dogmas.48 °
Apart from the facts that at least Catholic parochial schools are not
restricted to members of that faith, 48 ' and that sectarian hospitals not
infrequently have religious insignia in the rooms, 4 2 have religiously
significant requirements for doctors who may enter, 48 8 and follow medical
codes differing from that of the American Medical Association, 8 4 there
is a more constitutionally relevant response. When government funds are
being expended only for primary secular purposes-either ministering
to the sick or serving the secular educational needs of the young-the
religious affiliation of the recipient institutions or those in attendance
should be inconsequential-as should be the fact that "parochial schools
485
are created specifically for religious as well as secular purposes.
Religious restrictions on admission to an institution supported by
public funds or such an institution's general religious tone should be
similarly irrelevant constitutionally so long as the benefits provided may
conveniently be obtained elsewhere. 436 On the other hand, if "the gov42
8L. PFEa'm, supra note 26, at 201.
29 Id.
430d. See also Lien v. City of Ketchikan, 383 P.2d 721 (Alas. 1963); Kentucky Bldg.
Comm'n v. Effron, 310 Ky. 355, 358, 220 S.W.2d 836, 838 (1949); Truitt v. Board of Pub.
Works, 243 Md. 375, 404, 221 A.2d 370, 387-88 (1966); 62 Nw. U.L. REv. 256 (1967);
Comment, supra note 410, at 1116.
4
431For statistics, see 5 Hearings on S. 370, supra note 148, at 2547.
432 L. Ps'Ern, supra note 26, at 201-02.
433 Id. at 202.
434 Lowell & Southgate, supra note 382, at 54.
435 Note, The Elementary and Secondary Education Act of 1P65 and the First Amendment, 41 IND. L.J. 302, 321 (1966).
486 See text accompanying notes 375-77 infra. But see Giannella, supra note 199, at 528,
554, 589. Likewise, the fact that denoninational social welfare units "believe that all children
of their faith should be cared for by agencies representing the same faith," R. WmEmR,
Punirc FiNAxcxrG or VOLuxTARY AGENCY FosaER CARE 141-42 (1961), should not disqualify
them for public financial assistance.
The decision in Simldns v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir.
1963), cert. denied, 376 U.S. 938 (1964)-holding that "private" hospitals receiving HillBurton Act funds and participating in a federal-state program for satisfying community
hospital needs were sufficiently involved with "state action" to be subject to the fifth and
fourteenth amendments' prohibitions against racial discrimination-is sometimes cited for the
proposition that religious institutions receiving governmental aid may similarly be charged
1968]
AID TO PAROCHIAL SCHOOLS
ernment has chosen to aid a religious institution to save the expense of
building new public facilities" 3 7 or has "granted a government financed
monopoly over certain services in a particular geographical area,"438 the
result may be different. Under these circumstances, an otherwise private
institution is performing what has traditionally been, or what has effectively become, a "public function." Therefore, there is a forceful argument that it should be subject to the "state action" restrictions of the
Constitution 489-that either governmental assistance must be terminated
or the institution must be bound by the constitutional obligations of the
state.
F. Balancing
Probably the most forthright school of thought that wishes to have
the Constitution permit some public financial assistance to parochial
with the obligations of the state. Thus, it is argued that publicly assisted church-related
schools and hospitals may constitutionally be barred from giving any religious preference in
the choice of admittees, administrators and staff, from conducting religious observances, and
even from placing religious symbols in rooms. Comment, Public Control of Private Sectarian
Institutions Receiving Public Funds, 63 MIcn. L. Rzv. 142 (1964). See also P. KAUPE,
supra note 5, at 116-18; Kelley, Protestants and ParochialSchools, 79 Commonweal 520
(1964).
But the Simkins case is distinguishable on several grounds. First, the court noted that
it did not merely rely on the fact that the recipient hospitals were publicly financed. It
stressed that the hospitals operated "as integral parts of comprehensive joint or intermeshing
state and federal plans or programs designed to effect a proper allocation of available medical and hospital resources for the best possible promotion and maintenance of public health."
323 F.2d at 967. Thus, the court was impressed with the argument that these private hospitals were performing a "State function," id. at 968, that is, that they served in fact as
substitute facilities for those the state would have otherwise provided and that the state
selected them to be put to this use. See text at notes 437-39 infra. See also Lewis, The
Meaning of State Action, 60 CoLm.. L. REv. 1083, 1104 n.77 (1960). This "state function"
notion is not to be confused with the fact that these hospitals (like nonpublic schools or
other private hospitals) were simply rendering public services that other existing state institutions also happen to provide. But see Comment, supra, at 146-47.
Further, even if the fact that the hospitals were publicly financed is considered to be
the crucial ingredient, there is a vital distinction between "state action" of this kind involving racial discrimination and "state action" of this kind involving religious preferences and
observances. A publicly supported "private" institution's claim of right to racial discrimination is weak at best. But a publicly supported church-affiliated school's contention that
religious preference for students and faculty is necessary or desirable for execution of its
purposes raises a substantial claim under the free exercise clause. Similar and even stronger
claims may be made for religious observances and insignia. See generally Henkin, Shelley v.
Kraemer: Notes for a Revised Opinion, 110 U. PA. L. R1y. 473 (1963); Horowitz, Fourteentlh Amendment Aspects of Racial Discrimination in "Private' Housing, 52 CArTZ.
L.
R V.1 (1964); Van Aistyne & Karst, State Action, 14 STAiT. L. Rav. 3 (1961).
43 7
LaNoue, supra note 60, at 92 n.75.
48 8
Id.
43 9
See Evans v. Newton, 382 U.S. 296 (1966) ; Public Utilities Comm'n v. Pollak, 343
U.S. 451 (1952); note 436 supra. The "public function" issue is generally beyond the scope
of the discussion. For further consideration, see W. LocxnsRT, Y. KAivsAR &
CoNsTIruioNAL LAW 1235, 1290, 1293, 1322-25 (2d ed. 1967).
J.
CHOmR,
CALIFORNIA LAW REVIEW
[Vol. 56:260
education but forbid public subsidization of all the secular aspects is
that which contends that "today... most of the distinctions of the law
are distinctions of degree. ' 440 The view is that the Court must decide
' and must engage in "the process of
"when a little becomes too much,"441
balancing the many competing considerations and ultimately weighing
them on policy considerations. 4 42 The Everson majority's clear impli48
cation that bus transportation lay at the brink of unconstitutionality"
may be relied on for substantiation.4 44
This test is sometimes phrased in terms of a "direct-indirect"' 448 or
"active-passive" standard. 4 6 But, in essence, the approach requires the
Court to juggle a nearly infinite number of diverse factors-for example,
whether the state's purpose is religious or secular, the importance in terms
of priorities of the public purpose, the relative probability of its accomplishment, the type and quantum of benefit given to religion, whether
funds will be freed, the relative strength of sectarian influences operative
within a particular recipient institution, the relationship of the benefit to
the religious aspects of the institution aided, the extent to which the state
selects the institutions to be aided. These, in turn, must be measured by
the implications of the free exercise clause as tempered by the force of
the establishment clause, considered in light of the existence and
adequacy of alternative means, and perhaps bolstered by a presumption
of unconstitutionality (or maybe constitutionality)."4
The defect of this approach is by now apparent. If "the method of
weighing constitutional objectives in order to choose among them affords
no guidance for further action, except on what Holmes called a 'pots and
pans' basis,; 44 8 then subjective assessment of the multitudinous elements
at issue here is presumptively inappropriate for an independent judiciary
as we know it. Only in limited and compelling circumstances is such a
process even justifiable, much less desirable.4 49 The advocates of this
approach themselves acknowledge that, as applied to aid to parochial
440 Panhandle Oil Co. v. Knox, 277
.).
U.S.
218, 223 (1918) (dissenting opinion of Holmes,
Sutherland, supra note 85, at 1310.
442 Note, 52 Copm- L.Q. 814, 826 (1967). See also Moore, supra note 334, at 192-93.
448 See discussion at note 295 supra.
444
See U.. Dep't of Health, Education & Welfare, supra note 20, at 368-69. See also
Horace Mann League v. Board of Pub. Works, 242 Md. 645, 671, 220 A.2d 51, 65, cert.
denied, 385 U.S. 97 (1966).
445
See Hayes, supra note 201, at 108.
44
GSee Note, 8 LA. L. Ray. 136, 140 (1947).
447
See generally U.S. Dep't of Health, Education & Welfare, supra note 20, at 365-73;
Comment, supra note 410, at 1109-14. See also Note, 52 Comn.LL L.Q. 814, 826 (1967);
Note, 8 LA. L. Rav. 136, 140 (1947).
44 8
Kurland, supra note 19, at 96.
449 See text accompanying notes 32, 117-20, 337 supra.
441
1968]
AID TO PAROCHIAL SCHOOLS
schools, "it is futile to hazard a prediction of the outcome ' 4' 0 and that
the consolation to "[t] hose who see no distinction between transportation
and any other form of assistance whatsoever [is that they] should keep
451
in mind that, apparently, the Court [in Everson] did."7
G. Horace Mann
The recent, celebrated Horace Mann decision in Maryland 52 invalidating under the establishment clause the allocation of state funds to
three of four church-related colleges for construction of science and
classroom buildings, a dining hall, and a dormitory, employed a somewhat
more limited but analytically similar balancing approach. The state court,
interpreting the relevant Supreme Court opinions as barring any direct
grants to "sectarian" institutions, 453 utilized a six-criteria formula to
determine whether each recipient college met this test.4 54 The court itself
recognized the inappropriateness of this constitutional approach-"to
decide each case upon the totality of its attendant circumstances.1 4 5 It
admitted that application of its test was "a rather elusive matter, being
456
somewhat ephemeral in nature."
The more basic defect in the Horace Mann decision was that, for
establishment clause purposes, 45 7 it ignored the fact that, no matter how
"sectarian" the recipient college, the state expenditures seemingly served
a primary secular purpose; 45 undoubtedly, the colleges found to be
"sectarian" receive many indirect public benefits that "aid" them as significantly as the funds in issue.459 Thus, to bar all direct governmental
450 Moore, supra note 334, at 193.
451 U.S. Dep't of Health, Education & Welfare, supra note 20, at 369.
452Horace Mann League v. Board of Pub. Works, 242 Md. 645, 220 A.2d 51, cert.
denied, 385 US. 97 (1966).
453 242 Md. at 654-72, 220 A.2d at 59-66.
4 54
The court examined in detail (a) the college's stated purposes, (b) the college
personnel, (c) the college's relationships with religious organizations and groups, (d) the
place of religion in the college's program, (e) the product of the college program vis-&-vis
accreditation and character of activities of alumni, (f) the work and image of the college in
the community. Id. at 672, 220 A.2d at 65-66. For a more direct, less complicated approach,
under a state constitutional provision, see Collins v. Kephart, 271 Pa. 428, 117 A. 440 (1921).
455 242 Md. at 678, 220 A.2d at 69.
450
4 57
Id.
The court, in rejecting attacks under the Maryland constitution, held that the
expenditures were "for public purposes2' 242 Md. at 685, 220 A.2d at 73.
458See Drinan, The Challenge to Catholic Education in the Maryland College Case,
NAT'L CATHOIaC EDUC. AssIx. BuLL., May 1967, at 3, 5.
450 For example, various forms of student scholarships and assistance. See note 382
supra; Brown, supra note 382, at 182-83; Blum, supra note 37, at 147-48; 3 Hearings on
S. 600 Before the Subcomm. on Educ. of the Senate Comm. on Labor and Public Welfare,
89th Cong., 1st Sess., at 1226 (1965) (Statement of Lawrence Speiser, Director, Washington
ACLU).
CALIFORNIA LAW REVIEW
[Vol. 56:260
grants to church-affiliated educational institutions simply because they
engage in certain practices that foster religion, while acknowledging that
"not every activity of a religious group is necessarily a religious activity,"'4 60 not only jeopardizes a host of existing state and federal
programs, 46 ' but places form over substance and is constitutionally
unsatisfactory.
H. Manipulation
1. Lending Textbooks
The test for determining whether governmental assistance to religion
breaches that neutrality demanded by the first amendment, it has recently
been argued, should be whether "the aid could be manipulated by church
or state to dominate the other.1 462 The aid involved, for example, in the
Allen case now pending before the Supreme Court 4 3-- lending secular
textbooks to parochial school students-is found to violate that standard
on several counts.
First, "since textbooks are used in the classrooms as an integral
feature of the educational process, there is no certainty that they would
not be manipulated for religious instruction in parochial schools." 6 4 True.
But even assuming that similar manipulation could not occur with respect
to state-provided school lunches (by prayers in connection therewith, for
example), or state-financed school medical examinations (by their illustrative use in classroom theological discussions), or state-laid sidewalks
providing access to the denominational school, the point is not well taken.
Even public aid that is itself immune from sectarian manipulation frees
church funds either for uses subject to manipulation, or for strictly religious uses. This being so, the attempted limitation only formalistically
accomplishes the end sought. The sole criterion should be whether the
total public support exceeds the value of the secular service rendered. If
allegedly secular activities are so manipulated as to be no longer fairly
characterized as nonreligious, they may not be included in valuing the
secular service provided.46 5
Second, it is contended that lending textbooks "will create and foster
a pressure to dominate the choosing of books that shall be used in the
public schools (so that they may also be used in parochial schools). 13466
4603 Hearings on S. 600, supra note 459, at 1223 (Statement of Lawrence Speiser,
Washington ACLU).
Director,
461
See Davidow, supra note 131, at 668-69.
462 Note, 36 GEo. WAsH. L. Rev. 246, 250 (1967).
463 Board of Educ. v. Allen, 20 N.Y.2d 109, 228 N.E.2d 791, 281 N.Y.S.2d 799 (1967),
prob. juris. noted, 36 U.S.L.W. 3278 (U.S. Jan. 15, 1968).
464 Note, 36 GEo. WAsH. L. R v. 246, 249 (1967).
465 See text accompanying notes 200-80 supra.
466 Note, 36 GEo. WAsH. L. REv. 246, 250 (1967), quoting from the dissenting opinion
1968]
AID TO PAROCHIAL SCHOOLS
That may be true. But if such pressures occur and are unconstitutional, 67
they should be dealt with specifically rather than by striking an entire
program. And, however irresistible such pressures would be, they seemingly exist even in the absence of the program because approximately
half of Catholic children presently attend public schools.4 68
2. Control Follows Aid
Finally, it is urged that if "parochial schools become dependent on
state financing of books for children, manipulative conditions could attach
which would compel sectarian schools to restrict religious instruction or
which could ultimately result in dissolution of a separate parochial
system altogether. 4169 This "control follows aid" assertion, frequently
heard 470 and already referred to, 47 1 deserves further consideration.
It was said ten years ago that "examination of the state constitutional
and statutory provisions reveals little public control of private schools
and teachers." 72 An authoritative and comprehensive federal study
reported at that time that in only five states do departments of education
"have explicit statutory responsibilities for the certification of teachers
of nonpublic schools," 478 and indicated that curriculum regulation was
indeed minimal. 474 And there is little reason to believe that much significant change has taken place since then.475
It is argued that increased state financial assistance to parochial
schools will bring additional state supervision because it is "discrimiin Board of Educ. v. Allen, 20 N.Y.2d 109, 123, 228 N.E.2d 791, 798, 281 N.Y.S.2d 799, 810
(1967) 7 prob. juris. noted, 36 U.S.L.W. 3278 (U.S. Jan. 15, 1968).
46 See also discussion in text accompanying notes 67-74 supra.
468 L. PyEuER, supra note 26, at 510.
469 Note, 36 GEO. WAsH. L. REV. 246, 249-50 (1967).
470 See, e.g., Everson v. Board of Educ., 330 U.S. 1, 27 (1947) (dissenting opinion of
Jackson, J.) ; Gurney v. Ferguson, 190 Okla. 254, 256, 122 P.2d 1002, 1005 (1941) ; Davidow,
supra note 131, at 683.
471
See note 436 supra.
472 Kohlbrenner, Some PracticalAspects of the Public Character of Private Education,
86 ScHooL & Soc'y 348, 351 (1958). In 1956, the National Education Association concluded
that state supervision of nonpublic schools was "conspicuous by its absence rather than by
its presence." State and SectarianEducation, 34 N.E.. RESEARcH B--.L. 210 (1956).
473 F. BEAc3H & R. WiLL, supra note 27, at 26.
4 74
Id. at 25.
475 A 1964 study of state curriculum requirements for nonpublic schools showed that
41 states provided for some regulation. But the instructional areas covered included only
the following: common branches of education (31 states), U.S. Constitution (27), English
language (26), American history (16), state constitution (16), other national documents
(15), state and national civics (15), safety education (10), moral education (6), state
history (6), other areas of special state interest (6), physical education (4). Stolee, Nonpublic Schools: What Must They Teach?, 92 ScHooL & Soc'l 274, 275 (1964), reprinted in
1 Hearings on S. 370, supra note 148, at 469. Further, in 15 of these 41 states, there was no
enforcement whatever of the regulations. Id. at 470.
CALIFORNIA LAW REVIEW
[Vol. 56:260
natory . . . to allow public funds to be spent by private schools without
470
public control and yet insist on such public control for public schools.)
Perhaps this will be true as a realistic political matter. However, government may believe controls are unnecessary or undesirable, and aid conditioned on controls thought unsatisfactory by the recipient may be
refused. More importantly, as a constitutional matter, the state's power
to regulate nonpublic schools is wholly independent of any allocation of
public funds. 47 7 This is confirmed in practice by requirements already
noted4 78 and by a number of others. 479 On the other hand, public aid or
not, the Constitution forbids unreasonable restriction of religious instruction or dissolution of the parochial school system.
The landmark decision of Pierce v. Society of Sisters4 80 is relevant on
both counts. Invalidating a state requirement of compulsory public school
education, the case held that due process of law forbids unreasonable
state interference with parents' liberty to direct their children's education. The parental right being grounded in the Constitution, state
authority to curtail it would not appear to be augmented by the grant
of governmental funds. 481 But Pierce also recognized state authority
"reasonably to regulate all schools, to inspect, supervise and examine
them, their teachers and pupils; to require . . . that certain studies
nothing
plainly essential to good citizenship must be taught, and that
482
welfare.)
public
the
to
inimical
manifestly
is
which
be taught
Those whose conscientious scruples constitutionally entitle them to
attend a church-related school plainly have no absolute right under the
free exercise clause to maintain those schools free of state regulation, 88
whatever the amount of public financial support given them. Although
the state may have no right "to standardize its children by forcing them
to accept instruction from public teachers only, ' 4 84 to attain important
47
o Bemis, What is Discrimination?,42 PNi DELTA ]' MPAN 329 (1961).
7 See Brickmnan, Public Aid to Religious Schools, 55 RELm.ious EDuc. 279, 287 (1960).
See also Whelan, Textbooks and the Constitution,107 AMEIcA 399, 401 (1962).
47
478 See note 475 supra.
479 See, e.g., 20 ME. REv. STAT. AwN. § 1281 (1965) (commissioner shall establish requirements for accreditation including quality of instruction, school facilities and curriculum
content); MicH. CoM2. LAws ANx. §§ 340.732(a), 388.551 (1967) (courses of study shall
be comparable to and of same standard as in public schools); Nav. R1v. STAT. § 394.130
(1963) (same instruction as is required in public schools, but no right to share in public
school funds); N.Y. EDuc. LAW § 3204 (McKinney 1953), as amended, (McKinney Supp.
1967) (course of study for first eight years must include twelve designated subjects); N.C.
Gm. STAT. § 115-255 (1966) (religious instruction should not be interfered with but minimum standards for courses of study must be met).
480268 U.S. 510 (1925).
481See note 490 infra.
482 268 US. at 534.
488 But see A. lomqsox & F. YosT, supra note 28, at 139.
484 Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).
1968]
AID TO PAROCHIAL SCHOOLS
societal goals it clearly may regulate action demanded by religion or
conscience." 5 This is especially true where the interests of children are
concerned.48 Although the free exercise and due process clauses may
assure private or sectarian schools the liberty "to inculcate whatever
values they wish,' 48 7 those clauses do not hamper the state's power
reasonably 48 8 to promote children's welfare through basic secular educa-
tion.489 Thus, the "control follows aid" argument, as least as to its
constitutional relevance, loses its force. 490
I. Accreditation
By virtue of Pierce v. Society of Sisters,491 states must make it possible
for parochial schools to gain accreditation. It is therefore contended that
"public money . . . cannot logically be withheld from the private school
if it is publicly accredited as an institution where children may fulfill
their legal duty to attend school. ' 492 This reasoning, acclaimed as the
485
Braunfeld v. Brown, 366 U.S. 599, 603-04 (1961); Cantwell v. Connecticut, 310
U.S. 296, 303-04 (1940).
48
6Prince v. Massachusetts, 321 U.S. 158, 168 (1944).
487School Dist. v. Schempp, 374 U.S. 203, 242 (1963) (concurring opinion of
Brennan, J.).
488 In making the "accommodation between the religious action and an exercise of
state authority [which] is a particularly delicate task," Braunfeld v. Brown, 366 U.S. 599,
605 (1961), the state's interest in demanding that certain courses be taught would seem
more substantial than its concern in forbidding inquiry into some field of knowledge. See
Meyer v. Nebraska, 262 U.S. 390, 392 (1923) (argument for plaintiff in error). State
control "need not be so restrictive that the independent school is precluded from having
ample flexibility in determining how these common learnings will be taught, what additional
subjects will be offered, what personal values will be imbued, and what experiments will be
conducted." Fountain, A Plea for Public Support of Pluralism in America, 44 pni DELTA
KAPPAN 415, 418 (1963). See Farrington v. Tokushige, 273 U.S. 284, 298 (1927). Nor should
the state's requirements be so onerous as to preempt time for religious instruction. See
Choper, supra note 4, at 392-93.
48
9See State v. Garber, 197 Kan. 567, 419 P.2d 896 (1966), cert. denied, 389 U.S. 51
(1967), and cases there cited, 197 Kan. at 574-75, 419 P.2d at 902. See also 5 Hearings on
S. 370, supra note 148, at 2073 n.21 (Statement of Edgar Fuller).
490 It has been contended that public financial assistance to parochial schools with
resultant controls would be contrary to the prohibition in Everson v. Board of Educ., 330
U.S. at 16, of government participation "in the affairs of any religious organizations or
groups and vice versa." Lowell & Southgate, supra note 382, at 50. But the Everson
opinion itself recognized that parochial schools must meet "the secular educational
.Xequirements which the state has power to impose." 330 U.S. at 18. With or without
financial assistance, this is not the government participation in religious affairs obviously
referred to by the Court, its exact language notwithstanding. Further, if the state enters
into a contract with a religious organization (here, for secular education), the state may
enforce reasonable terms. Just as surely, the state may not "condition the availability of
benefits upon . . . [the recipient's] willingness to violate a cardinal principle of . . .
religious faith." Sherbert v. Verner, 374 U.S. 398, 406 (1963).
491268 U.S. 510 (1925).
492
Drinan, The Constitutionality of Public Aid to Parochial Schools, in TnE WALL
BEWrWEE
CVEMcR AND STATE 55, 60 (D. Oaks ed. 1963).
CALIFORNIA LAW REVIEW
"strongest argument to sustain .
.
[Vol. 56:260
. general aid to parochial schools,1 4 8
may be misleading.
The fact of accreditation should not be determinative. Under the
establishment clause analysis proposed herein, a state could constitutionally "accredit" a parochial school course in religious instruction for
the purpose of satisfying the minimum number of units required for
graduation under state law. Since the purpose and effect of such a course
could be religious-sectarian indoctrination-accreditation by the state
would serve a primary religious end. But it would neither compromise
anyone's religious scruples nor involve the use of compulsorily raised tax
funds. 494 However, for the state to support such an accredited course with
public funds would have the latter effect and, therefore, should be held
to violate the bar against establishment of religion. Similarly, accreditation of a parochial school should not necessarily permit its being financed
with public money on a par with schools that are not church-affiliated.
The establishment clause should bar any grant of public funds exceeding
the value of the secular services rendered.
J. The Public Welfare-Educational Process Distinction
Many opponents of public aid to parochial education, conceding the
validity of certain "'health' measures ' 405 like free medical and dental
services and free hot lunches for children in parochial schools, would
draw the line there. Aid beyond this-in the form of school bus transportation, textbooks, or science equipment-is aid "to the educational
process itself" 496 and falls within the constitutional ban. Medical care and
hot lunches are "true welfare benefits," it is contended, needed by a child
"whether he goes to a public school, to a parochial school, or to no school
at all."'4 7 But school transportation and textbooks "are essential aids to
the function of education as such . . . [and] cannot constitutionally be
provided where the education 49is8 religious, since the function [aided] thus
becomes religious education."
493
Kurland, Politics and the Constitution: Federal Aid to Parochial Schools, 1 LmD
& WATER L. REv. 475, 491 (1966).
494 See text accompanying notes 51-53 supra; Choper, supra note 4, at 406-07.
495Archer, Protestants Reply: The Bishops Demand Subsidy, U.S. NEws & WonxL
REPORT, Dec. 2, 1955, at 104, 105.
406 Statement of Mr. Greenawalt, in Dorsen, supra note 33, at 44. See also Tockman, The
Constitutionality of Furnishing Publicly Financed Transportation to Private and Parochial
School Students in Missouri, 1963 WASn. U.L.Q. 455, 491-92, 505; 33 CoaNEL. L.Q. 128
(1947); Comment, A Constitutional Analysis of the Wisconsin School Bus Law, 1962 Wis.
L. Rxv. 500, 516.
49TL. Przax, supra note 26, at 570.
4 08
Rosenfield, Separation of Church and State in the Public Schools, 22 U. Pzrr. L.
REV. 561, 580 (1961). This "which function is aided" theory seems first to have been
developed at length by Cushman, supra note 185, at 348-49.
19681
AID TO PAROCHIAL SCHOOLS
This rationale may be challenged on a number of grounds. First, it
is inconsistent with a conclusion drawn by its own advocates. The public
welfare-education distinction would invalidate all school medical, nurse
and dental care and milk and hot lunch programs for parochial school
students. Although such services may be needed by every child, these
state and federal programs do not "go to pupils as minor citizens . . .
[but rather] to them as school-children. ' 49 9 They are not provided to
the unfortunately substantial number of school-age children not enrolled
in any school, 0 0 nor to children absent from school, nor to any children
on those days when schools are closed. 501 Similarly, this thesis would
disqualify parochial school students from the benefit of such municipal
services as school area traffic control devices 0 -- including stationing
traffic officers on school corners 5 0 5-- home instruction for those temporarily unable to attend school, the public library school bookmobile,
school driver training, 04 reduced rates by a publicly owned system for
pupils traveling to school or school activities, 0 5 and publicly sponsored
educational television programs for classroom use. 00
Conceding that "transportation, where it is needed, is as essential to
education as any other element, ' 5 " this is equally true of medical care
and hot lunches. Hot lunches in particular, we know today, are no less
important for many children than, as Mr. Justice Rutledge said of transportation, "the very teaching in the classroom or payment of the teacher's
sustenance. Many types of equipment, now considered essential, better
could be done without. 50 s Any distinction between them does not hold. 0 9
But the more basic objection to distinguishing between medical care
and school lunches, on the one hand, and bus transportation, science
409 Williams, Church-State Separation and Religion in the Schools of Our Democracy,
EDuc. 369, 373 (1956), who states the converse as being the fact.
500 In 1949, the National Education Association pointed out that there were then 4
million such children. 66 CHm5TrAx CFN£. y 166 (1949) (editorial).
5 01
For illustrative description, see T. PowELL, THE ScHooL Bus LAW 69-74 (1960).
G02 See R~hoades v. School Dist., 424 Pa. 202, 211, 226 A.2d 53, 59, cert. denied, 389
51
RmIGIOUS
US. 11 (1967).
503 See 23 NoRE Dum LAw. 367-68 (1950) ; 11 U. Pnr. L. REv. 321 (1950).
504 See R. DaxnAN, supra note 50, at 138.
505 See id. at 139.
50
6See 5 Hearings on S.370, supra note 148, at 2338.
507 Everson
J.).
v. Board of Educ., 330 US. 1, 47 (1947) (dissenting opinion of Rutledge,
Its cost has been estimated at "10 to 15 per cent of total school costs." Christian and
Public Schools: Some Specific Problems, 40 P~r DELTA KAPPAN 302, 303 (1959).
5
08 Everson v. Board of Educ., 330 U.S. 1, 48 (1947) (dissenting opinion).
509 See Johnson, Religion and Public Education, BuLL. or NAT'L Ass'x or SxconARY
April 1947, at 95, 97, suggesting that a lunch program should be viewed
ScnooL PpmcumA,
as direct aid to the school because "without it they would be forced by the competition of
public schools to provide lunches at their own expense." See also Blum, Religious Liberty
and Bus Transportation, 30 Nom Dxrs LAw. 384, 420 (1955).
CALIFORNIA LAW REVIEW
[Vol. 96:260
equipment, and the like, on the other, is that all of these items fulfill
independent primary secular purposes.5 10 Even if they are all classified
as essential to the educational function,51 ' none has the primary effect
of aiding religious education in violation of the establishment clause. 2
A child needs secular education "whether he goes to a public school, to
a parochial school, or to no school at all"; secular education is a "true
51 3
welfare benefit.1
The Everson dissenters found the bussing plan the same as furnishing
"free carriage to those who attend a Church," ' 4 or paying "the cost of
transportation to Sunday school, to weekday special classes at the church
or parish house, or to the meetings of various young people's religious
societies.", ' 5 State action of these sorts would obviously violate the
51OThe Everson dissenters complained that the reimbursement of parents for bus
transportation costs was in no way related to "the child's safety or expedition in transit,"
330 U.S. at 20 (Jackson, J.), because riding on public busses was "subject to all the hazards
and delays of the highway and the streets." 330 U.S. at 60 (Rutledge, J.). But the New
Jersey plan assured that children would ride busses to school whereas without compensation
they might walk, drive their own cars, or be transported by busy parents or friends. Surely,
the state could find that public busses provided for greater safety than the first two, and
it was reasonable to believe that it might be more secure than the last. That the parochial
school or the religious education therein was also benefited should be of no constitutional
consequence. See Nichols v. Henry, 301 Ky. 434, 443, 191 S.W.2d 930, 934-35 (1946).
Even if the motivating consideration or main effect was not protecting children from
traffic hazards but rather relieving the hardship of distance, see Board of Educ. v. Wheat,
174 Md. 314, 326, 199 A. 628, 634 (1938) (dissenting opinion); L. PsX=, supra note 26,
at 567, the primary purpose is no less secular. Perhaps "a child going to visit a neighbor
or to a motion picture theatre is just as much subject to the hazards of the road as a
child going to school," L. PFE R, supra note 26, at 566. See also Pfeffer, supra note 202,
at 395-96. But see LaNoue, supra note 60, at 89. However, the fact that the state chooses
only to safeguard the child going to school does not contradict its secular purpose. "The
legislature may do what it can to accomplish what is deemed necessary for the public
welfare, and stop short of those cases where the detriment to a few, not afforded state aid,
is considered less important than the expense or inconvenience to the state which might
result if the rule laid down were mathematically exact." Matthews v. Quinton, 362 P.2d
932, 957 (Alas. 1961) (dissenting opinion), cert. denied, 368 U.S. 517 (1962). See discussion
in text accompanying notes 170-75 supra. Thus, the state may provide bus transportation
for all school children, all poor school children, all school children who attend nonprofit
schools (see discussion in text accompanying notes 170-75 supra. But see Rhoades v. School
Dist., 424 Pa. 202, 250, 226 A.2d 53, 85 (dissenting opinion), cert. denied, 389 US 11
(1967)), or all nonpublic school children who live on existing public school bus routes.
But see Matthews v. Quinton, 362 P.2d 932, 940 (Alas. 1961), cert. denied, 368 U.S. 517
(1962). Public undertaking of any of these programs, like public funding of all secular
educational costs, serves a primary nonreligious purpose.
511See Sherrard v. Jefferson County Bd. of Educ., 294 Ky. 469, 478, 171 S.W.2d 963,
967 (1943); Gurney v. Ferguson, 190 Okla. 254, 255, 122 P.2d 1002, 1004 (1942).
512 See discussion in text accompanying note 498 supra.
513 L. P'asxRm, supra note 497.
514 330 U.S. at 24 (Jackson, J.). See also Powell, Public Rides to Private Schools, 17
H nv. Enuc. Rv. 73, 82 (1947).
515 330 U.S. at 47 (Rutledge, J.).
1968l
AID TO PAROCHIAL SCHOOLS
establishment clause. Although a secular purpose would be served (convenience of citizens, protection against traffic hazards), it would be
accomplished by unconstitutionally singling out one religion or all religions
for preferential advantage. 16
Aid to all schools, or all school children, or all school children in
nonprofit schools does not so discriminate. Such aid is as constitutionally
nonpreferential as providing free carriage to all citizens or subsidizing
all public transportation costs. Because these general programs have a
primary secular purpose, they should not violate the establishment bar
when the transportation happens to be used to get to church, to religious
meetings, or to parochial schools. The programs are logically the same
as all other municipal services afforded all property without classifica17
tion reflecting its religious ownership.
It appears both logically and pragmatically ironical to contend5 18 that
bus transportation for school children alone violates the establishment
clause but that bus transportation for everybody, including school children, does not. The latter not only provides the same benefit to religious
education as the former, but, unlike the former, it also subsidizes trips
to Sunday school and church services. 519 These apparent inconsistencies
disappear under a rationale that looks to whether the government service
provided-transportation and textbooks, for example--serves a primary
secular purpose.
K. The "Who Controls" Test
Whether "it is the church (or church institution) or the state that
performs or controls the performance of the services paid for by the
state" has been submitted as the "ultimate test," 2 ' under the establishment clause, for permitting public financial assistance to parochial education. Its basis is that "[i]t is reasonable to assume that services performed or controlled by a religious institution could and would be used
to further the religious objectives of that institution, whereas services performed or controlled by a public body would be secular in purpose and
form." '' This thesis would permit "the transportation of school children
516 See text accompanying notes 159-60 supra.
517 State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 157, 115 N.W.2d 761, 766 (1962).
To say that, for religious property or activities, the establishment clause "forbids support,
not protection from interference or destruction," Everson v. Board of Educ., 330 U.S. 1, 61
n.56 (1947) (dissenting opinion of Rutledge, J.), is effectively to urge an untenable distinction between sidewalks and fire protection.
518 See discussion in text accompanying notes 495-98 supra.
519 See LaNoue, supra note 60, at 89.
520 Gordon, supra note 229, at 92.
521 Id.
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by a public bus," 52 2 despite the fact that this would be "ultimately beneficial to parochial school students and incidentally or indirectly of aid to
the church institutions they attend. 52 8 But it would forbid the supplying
of textbooks because "the use of texts in al educational context which is
privately, rather than publicly, managed and administered directly serves
24
a religious educational purpose."M
1. General Criticism
The principal difficulty with this proposal is in its basic assumption.
It is possible that a parochial school will so structure its services as to
further, exclusively or partially, its religious objectives. If so, as was discussed earlier,525 such services cannot be supported by government to a
greater extent than the value of the secular ends served. Further, it is
clear beyond doubt that public schools may also so structure some of their
services.52 6 If so, the courts must intervene when called upon. And it is
also'manifest that services controlled by a religious institution frequently
do in fact further society's nonreligious objectives.527 If not, public financial support could not even be given to a religiously-affiliated hospital, a
result apparently required by this thesis.
Transportation of parochial school children in a bus leased by the
school would probably be described, under this approach, as a service
"controlled" by the religious institution and thus the rental fee could not
be paid by government. 528 But bus transportation would nonetheless have
a secular purpose. Even religious instruction given during the bus ride
would not affect the primary secular purpose of safety and convenience.
And if the government closed its fire department and instead paid any
522 Id.
528 Id.
524 Id. at 93.
525 See text accompanying notes 200-80 supra.
526 See, e.g., cases cited note 2 supra.
527
The fact that a parochial school, in contrast to a public school, may have controlled
admission policies and religious exercises and instruction to further its religious objectives,
see G. LANouE, supra note 56, at 29-30, should not affect the result. See discussion in text
accompanying notes 375-77, 436-39 supra. To say that a school may not serve a public
purpose or function because of these factors, see G. LNoux, supra note 56 at 34-35, is a
misleading use of the word "public." Government is not restricted to supporting only
activities that are "open to the public!' It may finance action for a secular or public purpose
even though undertaken by an institution not subject to public management or to the
constitutional responsibilities of the state itself. See note 436 supra; Herberg, in RrLioiox
AND FRFXDOM 18 (D. McDonald ed. 1958). May a person, wholly supported by public
welfare be forbidden to discriminate racially in the purchase of necessary food and services?
528 Query, under this approach, if a publicly financed program of hot lunches, taken
in the parochial school building, is a service controlled by church or state, especially if a
school-directed blessing precedes and concludes it.
AID TO PAROCHIAL SCHOOLS
19681
private fire protection agency selected by the parochial school, the establishment clause should not invalidate this action.,29
The "who controls" approach has also been applied to library books.
Mr. LaNoue argues that a constitutional distinction should be drawn
between housing books in a parochial school library on "'indefinite' or
'permanent' loan"580 and having books "housed in public buildings" being
"removed ... only for the period necessary for reasonable educational
use .. for a textbook one semester or one year."5 8 ' But the purpose of
either alternative is plainly secular; the "control" exerted over the books
by the parochial school seems essentially the same;58 2 the public cost of
each program appears identical, as does the benefit to the child and his
school. This should not be the stuff of which constitutional distinctions
are made.
He asserts that "since the books will not be centrally catalogued,
students and teachers from other schools will be unable to borrow the
public materials. 5' 8 3 True. But so long as the primary purpose is secular
and parochial schools are not given preference over other schools similarly
situated, the fact should be of no constitutional significance.
2. Shared Time
Proponents of the "who controls" rationale would permit public
financing of shared time or dual enrollment programs58 4 in which parochial school pupils take part of their course work in the public schools. 5 5
Yet, not only would they bar use of these funds to pay for secular services
of parochial schools, they would also invoke the establishment clause to
529
But see Gordon, supra note 229, at 92.
5
30 LaNoue, The Title II Trap, 47 P3n DELTA KAPA.N 558, 561 (1966).
531Id. at 562. Mr. Pfeffer would distinguish constitutionally between public library
books lent to parochial pupils for up to two weeks and those lent for six months. The
latter is "in effect taking that book out of the public domain and putting it into private
domain." 2 Hearings on H.R. 2361, supra note 35, at 1631. But, contrary to his analogy, if
adequate books are provided for all to borrow on a six month basis, this is not the same
as a religious group appropriating a public park for six months. See also text accompanying
note 532 infra, and following note 533 infra.
582
3 Mr. Pfeffer would find a constitutional difference between public library loans to
parochial school students of books, records and magnetic tapes, on the one hand, and
equipment for playing the records and tapes, on the other. 2 Hearings on H.R. 2361, supra
note 35, at 1619. This surely is irrelevant in terms of "who controls." It would seem, under
that theory, that libraries would be barred from any loans to parochial school students for
school5 use.
33 LaNoue, supra note 530.
r)84See G. LANouE, supra note 56, at 43-44; L. PPE=s, supra note 26, at 578-79. See
also Note, 65 MIciH. L. Rav. 1224, 1231 (1967). But see American Civil Liberties Union,
Position on Shared Time, Apr. 4, 1965.
585
For discussion of rulings under state constitutions, see Katz, Note on the Constitutionality of Shared Time, 1964 RELroGoN & PUB. ORDER 85, 89-94 (D. Giannella ed.).
CALIFORNIA LAW REVIEW
[Vol. 56:260
forbid public school instructors teaching courses in the parochial schools
themselves. 5 Therefore, the very same public school teacher who taught,
say, a section of a course in home economics or geography to a class including parochial school students, as part of a shared time program in the
public school, could not teach the same course at the parochial school at
what might very well be the same total public expense. Nor would it
appear that a publicly hired speech therapy53 7 or driver training"'8 teacher
30 Of
could instruct parochial pupils at the church-affiliated school.5
course, these results would not obtain under the establishment clause
approach suggested in this article.54 °
(a) Parochial School Representation.-The fact that a parochial
school representative may participate with public school officials in the
planning and administration of shared time programs 4' has been condemned under the establishment clause. 541 But this is not the type of religious participation in the affairs of government 43 that must be thwarted.
If the participant seeks to inject religion into the shared time curriculum,
he may not do so. But if his participation is addressed to secular educa536 2 Hearings on HR. 2361, supra note 35, at 1618 (testimony of Leo Pfeffer).
537 See Special Dist. v. Wheeler, 408 S.W.2d 60 (Mo. 1966). Under the Elementary and
Secondary Education Act of 1965, public school personnel are providing remedial instruction
in mathematics and reading on parochial school premises. The question is raised in Poller v.
Board of Educ., a pending case described in American Jewish Congress, supra note 6, at 4.
The National Defense Education Act of 1958 finances state plans for academic testing of
nonpublic school students. 20 U.S.C. §§ 483(a)(1), 484(b) (1965). Apparently this could
be done by public personnel in parochial schools. See generally, 1 Hearings on S. 370, supra
note 148, at 471-72.
58 8
But see 2 Hearings on HR. 2361, supra note 35, at 815.
530 Query as to extension of home teaching services to physically handicapped children
who will return to parochial schools. See Scales v. Board of Educ., 41 Misc. 2d 391, 245
N.Y.S.2d 449 (Sup. Ct. 1963).
540 Professor Kurland suggests that shared time programs "have no rationale except
benefit for church schools," (supra note 493, at 494. See also Burton, Public Funds for Public
Schools Only, 78 CmsTIA1 CENTURy 415, 417 (1961)) and therefore violate the first
amendment. But, while seemingly judging legislative "motive," see text accompanying notes
103-04 supra, this disregards the clear effect of these programs which seek broader distribution of public funds to the goal of an improved secular education for all. If only parochial
school students could participate, the issue would be different. See text at notes 159-60
supra. The dual enrollment provision in Title I of the Elementary and Secondary Education
Act of 1965 requires participation "of educationally deprived children ...who are enrolled in
private elementary and secondary schools" 20 U.S.C. § 241e(a) (2) (Supp. 1, 1965) (emphasis
added).
541
See Elementary and Secondary Education Act of 1965, 20 U.S.C. § 844(a) (Supp. I,
1965).
542 1 Hearings on H.R. 13160 and H.R. 13161 Before the General Subcomm. on Education
of the House Comm. on Education and Labor, 89th Cong., 2d Sess., at 340 (1966); 2 Hearings, on HR. 2361, supra note 35, at 1610-11; Note, sutpra note 435, at 316.
543 See note 490 supra.
19681
AID TO PAROCHIAL SCHOOLS
tional concerns, no establishment issue should arise. Surely, a meeting of
government officials and community leaders to discuss publicly funded
programs for riot prevention may constitutionally include church representatives, who may suggest a secular role that their institutions might
play.
(b) Preference to Catholicism.-Especiallyin respect to shared time, 5"
it has been alleged that public financial aid to parochial schools is
in fact preferential aid to Roman Catholicism because that religion is the
principal one engaged in the field of education 545 whereas other denominations emphasize different endeavors. 54 61 But numerous civil regulations for
secular purposes affect the interests of different religious groups disproportionately-obvious examples being laws requiring Sunday closing,
enforcing monogamy, and prohibiting usury.54 So long as the state's
purpose and primary effect is nonreligious, the establishment ban should
be held satisfied.
L. Higher Education Distinguished
It is frequently asserted that aid to church-related colleges and universities is constitutionally distinguishable from aid to elementary and
secondary parochial schools. 5 48 The principal reason advanced is that
college attendance is voluntary, 549 whereas public support of parochial
schools is support of coerced religious instruction. 550 There is little doubt
that, if children are assigned by public authority-that is, coerced-to
attend what is in effect a parochial school, their first amendment rights
of religious liberty have been breached, whatever their religious faith.
Public support of the school under those circumstances merely compounds the evil.55 ' But, in the usual case, government compulsory education laws coerce no child to attend a parochial school, and public aid to
both public and parochial schools "would not make attendance at either
544 See Archer, The Truth about Shared Time, EDuc. DiG., Nov. 1966, at 10, 12.
545A recent estimate placed 52 to 6 million children in Catholic schools; 310,000 in
Protestant schools (mostly Lutheran, also Seventh Day Adventist, Reformed Church and
Mennonite); 50,000 in Jewish day schools. L. PrESTER, supra note 26, at 509-10.
545 Kelley, supra note 223, at 78.
547 See McGowan v. Maryland, 366 U.S. 420, 462 (1961) (concurring opinion of Frank-
furter, J.).
548 See generally Giannella, supra note 199, at 581-90.
549 See U.S. Dep't of Health, Education & Welfare, supra note 20, at 377-78; National
Catholic Welfare Conference, supra note 37, at 450.
550 The argument is articulated by P. KAIuPFR, supra note 5, at 115.
297, 10 N.E. 669 (1887);
551 Such was the case in Millard v. Board of Educ., 121 Ill.
v. Hoegen, 349 Mo. 808,
Harfst
(1918)
;
Knowlton v. Baumhover, 182 Ia. 691, 166 N.W. 202
163 S.W.2d 609 (1942); State ex rel. Pub. School Dist. v. Taylor, 122 Neb. 454, 240 N.W.
573 (1932); cf. Berghorn v. Reorganized School Dist., 364 Mo. 121, 260 S.W.2d 573 (1953);
Moore v. Board of Educ., 4 Ohio Misc. 257, 212 N.E.2d 833 (1965).
CALIFORNIA LAW REVIEW
[Vol. 56:260
type of institution any more or less compulsory.11ea 2 For both higher and
lower levels of education, a public purpose is achieved if the amount of
governmental financial assistance does not exceed the value of the secular
educational service rendered. 53
The further argument is made that, since a much higher percentage
of students is enrolled in private colleges than in private elementary and
secondary schools, the national interest in affording the former financial
assistance is much stronger. 554 But, again, a secular purpose would be
served in both instances. 555 Finally, there are two responses to the argument that "church colleges are not in the business of religious indoctrination, unlike church grammar and high schools."5 First, it may be contradicted by the facts: "[I]n many church-related colleges, religion is just
as central a part of the educational program and objectives as it is in
parochial schools." 557 Second, as has already been shown, the "permeation" issue should not act as a complete bar to aid.55
VI
EXISTING FEDERAL PROGRAMS
It has recently been calculated that at present there are more than one
hundred federal programs allocating property or funds worth billions of
dollars to religiously-affiliated institutions, the Department of Health,
Education, and Welfare alone aiding close to two thousand churchconnected educational agencies.5 59 Those programs involving the transfer
of commodities or equipment for the achievement of specific secular goals,
clearly fall within the class of permissibility under the establishment
652S. Doc. No. 29, 87th Cong., 1st Sess. 69 (1961) (Senator Keating).
55S See State ex rel. Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256 (1940). Cf. Wright
v. School Dist., 151 Kan. 485, 99 P.2d 737 (1940), where it is obvious that the public aid
exceeded the secular value.
654U.S. Dep't of Health, Education & Welfare, supra note 20, at 379.
555 Former Senator Keating has pointed out that "it is about as unrealistic to plan a
comprehensive aid-to-education bill at the elementary school level which isolates" the "more
than 5 million children" attending sectarian schools "as it would be to plan an aid to
higher education which ignored ...students attending sectarian colleges." S. Doc. No. 29,
supra note 552, at 69. Professor Kauper has noted that the "enrollment" argument "will
be weakened as time goes on, since more and more public institutions will have to assume
the lion's share of meeting increased demands for college education." P. KAuPEa, supra note
5, at 115.
556 Note, 61 Nw. U.L. R,y. 777, 787 (1967). See also U.S. Dep't of Health, Education
& Welfare, supra note 20, at 380.
57 Kauper, supra note 35, at 37.
558 The distinction between colleges on the one hand and grammar and high schools
on the other may be relevant under state constitutional provisions. See In re Opinion of
the justices, 214 Mass. 599, 601, 102 N.E. 464, 465 (1913).
559 See. Ervin, Mrs. Frothingham and Federal Aid to Church Schools, 43 N.D.L. Ra,.
691, 692-93 (1967).
19681
AID TO PAROCHIAL SCHOOLS
clause approach proposed herein, as do others affording direct grants for
research of a designated nonreligious nature 6 ' and for training personnel
for these purposes.561 Taxpayers' dollars are plainly not being used for
religious purposes. Nor are they so being utilized when public funds are
appropriated for the construction or purchase of facilities or property that
will be employed for strictly secular purposes 562 or for the establishment
of special programs for the achievement of public ends.56
Somewhat more suspect, at least in principle, are those plans that
grant money to church-affiliated educational institutions for part-time
employment assistance to students.5 64 It is possible under such programs
that public funds will be employed for strictly religious purposes-for
example, to pay a student assistant in a religious indoctrination course.
But the statutory scheme may protect against this,565 and even if it does
not, it is highly unlikely, given present realities and those of the foreseeable future in respect to the quantum of public financial assistance,
that any establishment clause issue would arise under the proposed
rationale. 5 16
A substantial number of current federal programs pay tuition grants
to deserving students.5 6 7 The possible dangers inherent in this form of
government monetary assistance have already been discussed. 56 8 But,
560See, e.g., 16 U.S.C. §§ 581, 581a (1964) (agriculture and forestry); 42 U.S.C.
§§ 1891-93 (1964) (science and national defense); 42 U.S.C. §§ 702(b), 712(b), 726, 729a
(1964) (child and maternal welfare); 42 U.S.C. § 241 (1964) (health); 42 U.S.C. § 1310
(1964) (public welfare and social security); 42 U.S.C. § 1857 (1964) (air pollution); 20
U.S.C. §§ 331-32 (1964) (education); 42 U.S.C. § 712 (1964) (crippled children); 42 U.S.C.
§§ 2542-44 (1964) (juvenile delinquency); 20 U.S.C. 512 (1964) (foreign languages); 20
U.S.C. § 542 (1964) (communications media for educational services); 20 U.S.C. § 35c(c)
(1964) (vocational education); 29 U.S.C. § 34 (1964) (rehabilitative medicine); 42 U.S.C.
§ 2473(b) (5) (1964) (aeronautics and space).
561 See, e.g., 10 U.S.C. § 4382 (1964) (ROTC); 42 U.S.C. §§ 2801-07 (1964) (teachers
of illiterates); 42 U.S.C. § 242(d) (1964) (nurses); 42 U.S.C. §§ 282-83 (1964) (cancer
control); 20 U.S.C. §§ 1031-34 (1964) (library science); 20 U.S.C. § 611 (teachers of
physically handicapped).
502 See, e.g., 42 U.S.C. §§ 292-93 (1964) (medical training); 20 U.S.C. §§ 701-33 (Supp.
I, 1965) (construction of higher education facilities).
G03 See, e.g., 42 U.S.C. § 2000b (1964) (racial desegregation in education).
04 See, e.g., Economic Opportunity Act of 1964, 42 U.S.C. §§ 2751-56 (1964) (workstudy).
56542 U.S.C. § 2754(a) (1964) provides "that no such work shall involve the construction, operation, or maintenance of so much of any facility used or to be used for
sectarian instruction or as a place for religious worship."
566 See text following note 251 supra.
567 See, e.g., 20 U.S.C. §§ 1061-69 (Supp. I, 1965) (needy students in higher education) ; 20 U.S.C. § 511(b) (1964) (modem foreign languages); 20 U.S.C. § 464 (1964) (national defense). See also the "Delaney proposal," H.R. 9803, 87th Cong. 2d Sess. (1962)
($20 annually for each elementary and secondary school child); the "Church proposal,"
15.R. 4978 & H.R. 340, 87th Cong., 1st Sess. (1961) (tax benefits for parents of all students).
508 See discussion in text accompanying notes 379-87 supra.
CALIFORNIA LAW REVIEW
[Vol. 56:260
again, as a practical matter, there should be no real nonestablishment
problems.5 69 In conclusion, whatever the eventual judicial decision concerning the constitutionality of parochial school aid, the federal legislature has long given implicit recognition to its administrative viability, in
respect to the rule proposed herein.
CONCLUSION
This article has attempted to serve several purposes. One has been to
explore the broad scope of the first amendment's mandate that "Congress
shall make no law respecting an establishment of religion," from both a
traditional and normative perspective, accounting for both historical and
contemporary goals. As a rationale for the constitutional adjudication of
issues arising under the establishment clause, it suggests that a distinction
be drawn between state action for religious and secular purposes and that
the first amendment was designed to safeguard personal religious liberty
by preventing the government from coercing religious belief and from
taxing for religious purposes. The recommended approach is advanced,
however, only as a point of departure. It does not mechanically produce
answers, nor is it intended to articulate a "completely coherent system
applicable across the board.1 570 Further, it demands a delicate judicial
judgment in close cases, although it would seem that the really difficult
applications are more frequently created by imaginative hypotheticals
than by the authentic dynamics of government action.
The article's second major purpose has been to propose a constitutional rule for the thorny political issue of governmental financial assistance to parochial education. Specifically, the rule advises that governmental aid to parochial schools is constitutional to the extent that it does
not exceed the value of their secular services. Whatever the incidental
benefits to religious institutions, the establishment clause should be
satisfied by ensuring that government receive secular returns from those
institutions commensurate with its financial expenditure.
It is easier to describe briefly what tasks have deliberately been
omitted. No reconciliation of the pertinent state, federal, or Supreme
Court decisions has been attempted. No prediction as to the outcome of
569 More substantial issues have been presented by the Ordinances for the Northwest
and Southwest territories which set aside land grants for the support of religious education
and by 18th and 19th century congressional support of religious education of Indians by
Christian missionaries. See Costanzo, Federal Aid to Education and Religious Liberty, 36
U. DEr. L.J. 1, 34 (1958). See also 16 U.S.C. § 479 (1964), authorizing a group of persons
residing in the vicinity of national forests to use forest land for the erection of a church.
The primary effect of these programs would appear to be the employment of tax funds for
religious purposes.
570 Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and PoliticalScience, 20 STAN. L. REv. 169, 190 (1968).
1968]
AID TO PAROCHIAL SCHOOLS
341
Supreme Court decisions in relevant present and future litigation has been
advanced. I have not endeavored to make a carefully balanced appraisal,
on the basis of my own likes or dislikes or those of others, of what is a
desirable, feasible or politic legislative course. 71
If the constitutional rationale advocated will sustain enactments
thought unwise by some, they must be reminded that it does not command results thought abhorrent by others. For the Court to decide that
some parochial school aid may be constitutional does not preclude the
legislature from finding that it is unwise or improper. The realm of what is
sound and just in this highly complex and emotionally charged area
should remain open for informed debate and expedient resolution so long
as the basic underlying freedom guarded by the establishment clause is
preserved.
571 See Oaks, supra note 5, at 8.